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FOUNDED  BY  JOHN  D.  ROCKEFELLER 


TREATMENT    OF    JUVENILE 
DELINQUENTS 


A   DISSERTATION 

SUBMITTED  TO  THE  FACULTY  OF  THE  GRADUATE  DIVINITY 

SCHOOL  IN  CANDIDACY  FOR  THE  DEGREE  OF 

DOCTOR  OF  PHILOSOPHY. 


DEPARTMENT     OF      SOCIOLOGY 


BY 
RICHARD  ROY  PERKINS 

H 


ROCKFORD 
of  01.  Jff. 
1906 


t  •  t 


f « 


COPYRIGHT  1906  BY 
THE  UNIVERSITY  OF  CHICAGO 


PREFACE 

Out  of  a  situation  betraying  the  stage  of  experiment,  attentive 
to  the  cry  of  a  world  of  neglected  children,  encouraged  by  the 
spectacle  of  the  earnest  army  of  volunteer  servants  of  the  unfor- 
tunate, these  thoughts  have  grown.  With  the  many  factors  to 
take  account  of,  time  no  less  than  thought  and  action  is  necessary 
for  the  working  out  of  juvenile  salvation.  Therefore,  one  must  be 
content  not  to  draw  up  a  final  program,  but  rather  to  reconnoitre. 

But  the  careful  and  successful  scout  always  knows  the  retro- 
spect of  the  land  as  well  as  he  does  the  prospect.  Yesterday's  ex- 
perience with  delinquent  childhood  has  been  written  in  such  bits 
that  it  has  been  difficult  to  read  it  as  a  continuous  arc,  enlighten- 
ing us  as  to  the  exact  path  trodden  and  yet  to  be  followed.  It  is 
yesterday's  path  we  tread,  but  never  before  with  such  eagerness 
and  progress,  nor  with  such  impatience  toward  injustice  and  undue 
conservatism,  nor  again,  with  such  disposition  to  unite  forces. 
We  begin  to  relate  civic  righteousness,  moral  uprightness  in  busi- 
ness, public  health  and  culture,  with  the  community's  childhood 
and  its  environment,  and  the  campaign  is  launched.  To  take  a 
small  part  in  it  would  be  worth  while. 

R.  R.  P. 

January,  1906. 


TABLE  OF  CONTENTS. 

INTRODUCTION. 


CHAPTER  I.    INTRODUCTION          -       -       -        -        -      *.-       .        -       -9 

PART  I.     THE  JUVENILE    DELINQUENT  IN   THE    AB- 
SENCE OF  SPECIAL   LEGISLATION 

CHAPTER  II.    THE  CHILD  IN  ANCIENT  CIVILIZATIONS       -        *       -        -  13 

1.  Introduction .---13 

2.  The  Child  as  a  Member  of  the  Family    -        -        -        -        -        -  13 

3.  The  Child  as  a  Member  of  the  State       -                                            -  16 
CHAPTER  III.    THE  CHILD  AMONG  PRIMITIVE  PEOPLES                           -  18 

PART  II.     THE  DEVELOPMENT  OF  SPECIAL   LEGIS- 
LATION FOR  THE  JUVENILE  DELINQUENT 

CHAPTER  IV.    EARLY  AND  INCIDENTAL  LEGISLATION       -       -       -       -  23 

CHAPTER  V.    SPECIAL  LEGISLATION  IN  VARIOUS  STATES         -       -       -  25 

1.  England                                                                 25 

2.  France     ------------  27 

3.  Germany 27 

4.  United  States                                                                          -        -        -  28 

5.  Conclusion 32 

PART  III.     THE  APPARATUS  FOR   THE  TREATMENT 
OF  JUVENILE  DELINQUENTS. 

CHAPTER  VI.    THE  JUVENILE  COURT 37 

r^    Origin -        -  37 

2.  The  Judge 37 

3.  The  Jury                                                          38 

4.  Legal  Representative  for  the  Child 38 

5.  Procedure 38 

6.  Place  of  Detention 39 

7.  Juvenile  Courts  and  Parents            -                 40 

8.  The  Court  and  Private  Interest 41 

CHAPTER  VII.    THE  PROBATION  SYSTEM            43 

1.  Origin      ---  .43 

2.  Probation  Officers 45 

3.  The  School  and  Probation 46 

4.  The  Church  and  Probation 46 

5.  The  Home  and  Probation 47 

6.  Some  Methods  in  the  Probation  System 47 

CHAPTER  VIII.    CHILD-SAVING  INSTITUTIONS  AND  THE  JUVENILE 

COURT. 50 


PART  IV.     CRITIQUE   OF   PRINCIPLES,    MEANS   AND 
METHODS:    SUMMARY. 

PAGB 

CHAPTER  IX.    PRINCIPLES  DRAWN  FROM  EXPERIENCE  55 

CHAPTER  X.    THE  SPIRIT  OF  THE  LAW  AS  A  FACTOR  IN  THE  TREAT- 
MENT OF  JUVENILE  DELINQUENCY  59 

CHAPTER  XI.    THE  FUNCTION  OF  THE  COURT  AND  THE  PROBATION 

SYSTEM  -    64 

CHAPTER  XII.    WHERE  THE  JUVENILE  DELINQUENT  RANKS  ARE 
RECRUITED  IN  ST.  LOUIS;     SUGGESTIONS  FROM  A 

PARTICULAR  STUDY.  67 

1 .  The  Recruiting  of  the  Ranks  •    67 

2.  The  Facts  Ensemble  in  the  Records  $9 

3.  The  Task  of  the  Schools                  71 

a.  Compulsory  Education  71 

b.  Moral  Training  71 

c.  Civic  Instruction  72 

d.  Manual  and  Religious  Training  73 

4.  Parks,  Playgrounds,  Vacation  Schools  and  Settlements  73 

5.  The  Place  of  the  Library  and  the  Librarian  73 

6.  Civic  Improvement  Leagues  74 

CHAPTER  XIII.    CONCLUSION      ---------    76 


INTRODUCTION 


CHAPTER  I. 

INTRODUCTION 

The  early  sculptor  carved  a  child,  and  he  carved  a  man  in  mini- 
ature,  with  muscular  limbs  and  body  and  small  head.  The  beauty 
of  the  child  physique  fled  before  this  caricature.  The  legal  sculp- 
tor has  attempted  to  chisel  a  child  who  has  broken  the  laws  of  the 
group,  and  his  model  has  been  an  adult  criminal.  And  the  moral 
beauty  of  childhood  has  often  taken  a  like  course.  To  lose  in  the 
statue  the  plumpness  and  the  irresistible  grace  of  childhood  jars 
our  aesthetic  sense,  but  the  incomparably  greater  loss  of  really 
injuring  child  life  condemns  us.  Where  we  should  have  used  a 
magnifying  glass  on  the  child  we  have  used  a  minifying  glass  on 
the  man  and  judged  the  result  to  be  the  same.  Today  we  are  re- 
defining both  crime  and  juvenile  delinquency  in  the  attempt  to 
remedy  the  error,  and  doing  it  to  the  advantage  of  both  classes. 

Every  member  of  a  community  is  considered  delinquent  or1 
faultless,  his  action  licit  or  illicit  according  to  his  attitude  towards 
the  accredited  opinion  of  the  group,  usually  expressed  in  its 
written  law.  The  aim  of  the  group  is  to  bring  all  into  conformity 
with  its  standard.  Success  depends  upon  many  conditions,  among 
them  educational  advantages  and  the  use  made  of  them;  eco- 
nomic conditions  in  the  group,  immediacy  of  need,  number  of 
providers,  etc.;  the  corrective  apparatus  through  which  conformity 
is  enforced  where  necessary;  religious  beliefs  and  practices;  the 
constitution  and  character  of  the  family;  the  size  of  the  group  and 
its  relations  with  other  groups. 

But  there  is  one  further  condition  which  in  our  effort  to  promote 
conformity  to  group  standards  we  have  come  to  consider  impor- 
tant, namely  the  age  of  the  member  of  the  group.  The  child  can- 
not well  live  up  to  the  standard:  he  lives  toward  it.  This  has  been 
acknowledged  in  some  manner  in  all  early  and  primitive  groups.,. 
The  child  has  usually  remained  subject  only  to  the  discipline  of 
the  family,  and  the  responsibility  for  his  conformity  has  been  on 
the  head  of  the  family.  Even  when  old  enough  to  be  accounted 
responsible  in  some  measure,  or  entirely  so,  often  the  penalties  for 
non-conformity  have  been  mitigated  or  suspended.  But  neither 
among  such  peoples  nor  among  us  has  sufficient  emphasis  been 
placed  upon  youth  and  upon  consequent  irresponsibility  for  actions 
as  factors  in  juvenile  delinquency.  As  our  life  becomes  more 
complex,  the  problem  of  training  the  child  into  harmony  with  all/ 
his  associates  grows  to  appalling  proportions  and  new  elements! 
are  added  continually.  Yet  we  may  learn  much  from  the  past  and 


10  TREATMENT    OF    JUVENILE    DELINQUENTS 

its  estimate  of  the  child  and  his  place  in  the  group  life,  especially 
in  the  family  and  before  the  law.  It  is  a  question  of  deepest  con- 
cern whether  the  present  legal  status  of  the  child  finds  him  follow- 
ing the  legal  fortunes  of  his  parents  without  reference  to  his  age, 
or  whether  in  the  story  of  the  race  and  its  child  life  there  has 
gradually  developed  a  feeling  that  he  is  subject  for  special  treat- 
ment as  a  child,  or  again,  whether  the  modern  revolt  against  ident- 
ifying him  with  the  adult  before  the  law  is  so  entirely  modern  that 
it  is  not  yet  to  be  trusted.  We  are  seeking  broad  and  safe  prin- 
ciples of  procedure  in  regard  to  the  treatment  of  children,  and  we 
dare  not  neglect  the  experience  of  other  peoples  and  ages  any 
more  than  we  can  afford  to  pass  by  the  highly  valuable  data  of 
child  psychology  and  pedagogy.  Hence  we  are  led  into  today 
through  a  brief  glimpse  at  yesterday. 


PART  I 

THE  JUVENILE  DELINQUENT  IN  THE  ABSENCE 
OF  SPECIAL  LEGISLATION 


CHAPTER  II. 
THE  CHILD  IN  ANCIENT  CIVILIZATIONS 

/.  Introduction.  A  child  is  born,  and  immediately  faces  a 
jury — the  jury  of  the  whole  group.  This  body  has  its  inevitable 
standing  instructions  and  on  the  basis  of  these  it  is  to  determine 
the  status  of  the  child.  ''What  is  his  sex?"  it  asks.  "What  is 
the  family  organization?  Which  parent  shall  control  his  early 
life?  Is  he  a  legitimate  child?  Are  both  parents  of  the  same 
group  and  of  the  same  religion?  To  what  social  class  do  they 
belong?  Is  the  child  by  virtue  of  birth  a  member  of  the  group,  or 
only  of  the  family?  Which  has  final  control  of  his  fortunes?" 
And  instantly  there  is  passed  a  verdict  from  which  there  is  no 
appeal.  According  to  the  instructions  dictated  by  custom  or  writ- 
ten law  he  is  thus  early  assigned  his  place  as  a  hanger-on,  as  an 
alien  within  the  group,  as  a  citizen  with  rights  today,  or  tomorrow 
to  be  granted,  as  in  line  for  class  privileges  or  as  simply  a  member 
of  the  family  with  no  claims  or  rights  beyond.  Among  ancient 
peoples  this  last  was  usually  precisely  the  case. 

In  no  way  may  we  better  appreciate  the  justice,  the  inevitable- 
ness,  the  whole  significance  of  the  verdict  of  the  modern  group 
upon  the  place  of  the  child  within  it,  than  through  a  rapid  survey 
of  the  judgment  passed  upon  the  matter  throughout  the  centuries. 
To  make  such  a  survey  inclusive  of  the  detail  of  custom  and  legis- 
lation would  be  as  impossible  as  it  would  be  useless  for  our 
purpose.  But  we  may  with  profit  observe  broad  tendencies  and 
typical  cases  sufficiently  to  furnish  us  the  sweep  of  the  develop- 
ment that  we  wish.  Clearly  there  is  such  a  development.  Re- 
valuation of  child  life  and  of  its  significance  to  the  future  of  the 
group  is  continually  going  on,  with  the  child  gradually  but  cer- 
tainly emerging  from  the  darkness  of  neglect  into  the  light  of  a 
vastly  improved  condition.  Men  had  but  to  observe  that  as  the, 
twig  inclined  so  the  tree  grew,  and  to  observe  the  social  disaster 
following  upon  the  growth  of  many  gnarled  and  stunted  and  un- 
healthy lives  in  order  to  know  the  importance  of  more  careful 
training  and  sane  prevention.  The  knitting  together  of  the  mem- 
bers of  the  group  and  the  constantly  increasing  interdependence 
of  all  members  of  the  social  body  furnished  a  final  impulse. 

2.  The  Child  as  a  Member  of  the  Family.  The  early  group 
was  a  society,  unified  through  kinship.  The  members  were  sub- 
ject to  the  laws  of  the  group,  framed  with  a  view  to  group  advan- 
tage. The  primitive  struggle  for  existence  demanded  that  men 
should  "hang  together  lest  they  hang  separately,"  and  what  was 

13 


14  TREATMENT    OF    JUVENILE    DELINQUENTS 

more  natural  than  that  there  should  develop  a  strong  sense  of 
family  unity,  centering"  in  that  member  of  the  family  who  was  the 
most  effective  leader  and  provider?  Thus  into  the  hands  of  the 
father,  usually,  the  fortunes  of  the  family  drifted:  he  was  respon- 
sible, and  he  was  powerful.  1  This  seems  a  far  more  logical 
explanation  of  the  patria  potestas,  the  paternal  power  over  the  for- 
tunes of  the  children,  than  the  attribution  of  it  to  the  more  special 
influence  of  religion.  To  be  sure,  the  father  in  many  of  the 
earlier  civilizations  was  formally  the  religious  head  of  the  family, 
but  we  do  not  need  to  resort  to  this  for  the  explanation  of  his 
power  over  his  family.  2  The  fact  exists  that  extraordinary 
powers  were  centered  in  the  father,  and  the  education  and 
correction  of  the  child  were  usually  left  to  him  rather  than  to  the 
group  as  a  whole.  The  child  was  not  a  member  of  the  latter  and 
neither  owed  the  other  anything,  until  such  time  as  the  "state" 
feeling,  based  upon  territory  and  property,  became  so  strong  that 
a  broader,  more  inclusive  authority  was  sought. 

The  patria  potestas  is  observed  typically  in  early  Rome,  which  is 
the  more  remarkable  in  that  it  operated  even  on  into  the  time 
when  the  "state"  idea  was  strong,  and  the  great  ambition  of  the 
Roman  youth  was  to  be  a  "citizen."  The  power  of  the  father 
over  his  children  was  absolute.  He  might  kill  them  if  he  would, 
and  there  was  no  greater  power  to  interfere.  Such  power  con- 
tinued ordinarily  to  the  close  of  the  father's  life  and  included  not 
only  his  own  children  but  also  the  children  of  his  sons  and  those 
of  his  sons'  sons.  3  Of  course,  daughters  after  marriage  came  under 
the  patria  potestas  of  another  group.  The  son's  position  as  a  citizen 
was  not  at  all  affected  by  his  subjection  to  this  despotic  power:  in 
his  public  relations  he  was  oil  the  level  with  his  father.  4  This 
involved  peculiar  relations  at  times.  Yet  this  anomalous  condition 
of  affairs  serves  better  than  anything  else  to  set  before  us  the 
development  of  the  matter.  The  unity  of  the  family  was  still  pro- 
foundly felt,  carrying  along  with  it  the  rights  and  responsibilities 
of  its  head,  but  the  sense  of  the  larger  social  relationships  was 
growing.  The  inevitable  result  was  a  modification  of  the  patria 
potestas.  Legally  the  son  had  "had  no  remedy,  either  civil  or  crim- 
inal, against  his  father  for  any  act,  forbearance  or  omission  of  any 
kind  whatever."  5  The  father  had  had  the  right  to  twice  sell  his 
son  into  slavery  without  the  son  having  any  claim  of  exemption 
from  paternal  authority.  6  In  the  Empire  the  power  of  life  and 
death  could  be  exercised  only  with  the  concurrence  of  the  govern- 
ment, and  selling  the  child  remained  only  as  a  form  of  certain  legal 
transactions.  7  Upon  the  rise  and  spread  of  Christianity  after 

1  L.  H.  Morgan,  Ancient  Society,  pp.  465-6. 

2  For  a  detailed  expression  of  this  suggestion,  see  Gaston  Drucker,  "De  la  Protection 
de  L,' Enfant  centre  L,es  Abvs  de  la  Puissance  Paternelle"  Premiere  Partie. 

3  James  Hadley,  "Introduction  to  Roman  Law"  p.  119.        4  Ib.  p.  121. 

5  W.  E.  Hearn,  "The  Aryan  Household,"  p.  92. 

6  Table  IV.  "Twelve   Ta,hles,"  time  of  compilation,  451  B.  C.     See  Lee,  "Historical 
Jurisprudence,"  p.  198. 

7  Hadley,  "Introd.  to  Roman  Law,"  p.  123. 


THE    CHILD    IN    ANCIENT    CIVILIZATIONS  15 

Constantine,  there  was  a  further  decline  in  the  patria  potestas,  till  by 
the  time  the  Justinian  Code  was  projected  in  527,  after  some  dec- 
ades of  codification  by  others,  the  laws  of  the  family,  property 
and  succession  were  altered  and  the  patria  potestas  in  its  absolute 
form  finally  disappeared.  The  state  had  given  the  child  a  right 
to  life  and  liberty — he  was  a  person.  8  The  prophecy  of  this 
is  to  be  seen  centuries  back  in  the  formality  observed  in  admit- 
ting the  boy  to  citizenship  in  the  state.  After  such  a  signif- 
icant act  became  an  institution,  the  patria  potestas,  as  ever  against 
the  state's  interest  in  the  child,  must  live  by  its  own  momentum. 
In  Roman  Law  alone  there  is  thus  most  interesting  evidence  of 
tremendous  social  change,  and  the  earnest  of  our  modern  legisla- 
tion assuming  the  parental  function  of  the  state. 

What  is  typically  observed  in  Rome  existed  in  nearly  all  the 
ancient  civilizations.  In  Babylon  the  son  stood  to  the  father 
much  as  a  slave;  the  father  hired  him  out  and  received  payment 
for  his  services,  and  exercised  great  powers  over  his  person.  9  The 
same  was  true  in  Israel,  though  Moses  (10)  limited  the  power 
of  life  and  death  by  making  it  necessary  for  the  parent  to  lay  the 
accusation  before  the  court  of  elders.  1 1  The  patria  potestas  seems 
to  have  been  a  fundamental  principle  of  Aryan  Society,  outgrown 
always  at  some  time  in  favor  of  the  "state"  view  of  things,  but 
outgrown  apparently  almost  accidentally,  at  widely  different  times 
in  various  groups,  with  the  immediate  cause  here  one  thing  and 
there  another.' 

In  Egypt  the  child  was  protected  through  enlarged  rights  of 
the  mother,  stated  in  the  contract  of  marriage  and  enforceable  by 
law.  The  father  could  not  disinherit  or  cast  out  the  eldest  son. 
The  patria  potestas  was  here  modified  but  hardly  in  favor  of  the 
parens patria  as  we  have  it. 

In  India  as  late  as  Manu's  "Institutes  of  Sacred  Laws,"  which 
are  hardly  later  than  the  second  or  third  century,  A.  D.,  a  son 
other  than  the  eldest  might  be  sold  by  his  parents  to  be  adopted 
into  another  family.  But  evidently  a  keen  moral  sense  against 
this  was  organized  there  long  before  it  was  in  other  countries.  12 

Athens  early  felt  the  need  of  adjustment  between  the  rights  of 
the  clan  and  the  rights  of  the  state  in  the  child.  Contemporary 
with  the  recognition  of  the  latter's  rights  was  a  curtailment  of  the 
patria  potestas,  and  this  is  plainly  to  be  seen  by  Solon's  time  (638- 
558).  He  deprived  the  father  of  rights  which  had  always  been  con- 
sidered inherent  in  fatherhood,  treating  father  and  son  as  indepen- 
dent individuals  whose  respective  claims  were  based  upon  the  fulfill- 
ment of  their  respective  duties.  13  This  was  an  inevitable  con- 
comitant of  the  rising  community  feeling.  The  son  was  a  future 
member  of  the  community,  and  therefore  the  state  had  a  right  in 
him,  superior  to  that  of  his  father.  Being  born  a  free  citizen  po- 

8  Lee,  "Historical  Jurisprudence,"  pp.  306-7. 

9  Lee,  "Hist.  Jurisprudence,"  p.  39. 

10  Deut.  XXI.  iSff.  ii  See  Ploss,  "Das  Kind,"  ii,  246. 

12  Lee,  "Hist.  Jurisprudence,"  p.  132.  13  Lee,  "Hist.  Jurisprudence,"  p.  173. 


16  TREATMENT    OF    JUVENILE    DELINQUENTS 

tentially,  he  could  not  be  sold  as  a  slave,  nor  disinherited  with- 
out just  cause.  It  was  a  community  interest  that  he  be  educated, 
fitted  to  live,  and  the  state  pressed  its  point  by  maintaining  that 
unless  he  were  so  fitted  he  should  be  under  no  obligation  to  support 
his  father  in  his  old  age.  14  Up  to  16,  however,  'he  was  under  the 
control  of  his  father.  This  was  a  transition  time  in  the  status  of  the 
child  and  the  regulations  bear  the  stamp  of  it.  Between  16  and  18 
the  state  dictated  a  two  years'  course  of  training  in  the  gymnasia, 
and  following  this  preliminary  preparation  for  its  service  he  was 
formally  admitted  to  full  citizenship,  swearing  fealty  to  it  and  to  its 
religion,  and  receiving  from  it  a  shield  and  spear  in  token  of  his 
acceptance.  And  it  was  the  father  of  the  family  ordinarily  who 
presented  him!  15 

Among  the  Germanic  tribes  during  the  early  Christian  cen- 
turies there  does  not  seem  to  have  been  the  same  extraordinary 
development  of  the  power  of  the  father  over  the  child.  The  child 
was  soon  needed  in  the  group  and  attained  majority  early.  The 
family  idea  was  strong,  but  in  a  militant  group  the  need  of  the 
group  for  the  sons  would  naturally  curb  the  absolute  power  of  the 
father.  Yet  among  these  peoples  late  into  the  Middle  Ages  the 
father's  right  to  sell  the  child  is  recognized,  although  its  exercise 
seems  to  have  become  obsolete.  16 

The  tendency  thus  far  is  clear;  the  social  process  is  going  on. 
The  community  feeling  becomes  larger  than  that  of  the  family,  and 
is  based  on  common  interest  and  protection  rather  than  on  kin- 
ship. The  child  in  his  training  antl  correction  belongs  to  the 
larger  group,  and  though  the  father  may  have  full  control  of  him 
up  to  a  certain  age,  or  only  nominally  so  long  as  he  lives,  yet  in 
the  exercise  of  his  parental  functions  he  is  looked  upon  as  a 
representative  of  the  state.  The  laws  of  domestic  relations,  the  laws 
of  property,  and  the  criminal  laws  begin  to  reflect  it,  indeed  had 
done  so  in  Solon's  time.  But  that  is  another  study.  We  may 
observe  briefly  this  same  tendency  where  the  state  gained  a  sense 
of  its  unity  and  responsibility  over  each  member  so  early  as  to 
furnish  us  a  spectacle  of  the  state  acting  as  parent  to  an  extent  to 
which  we  shall  not  approach  so  long  as  we  hold  our  present  views 
on  the  superiority. of  the  family  as  a  home  for  childhood  and  the 
inadequacy  of  any  other  institution  to  do  its  work. 

3.  The  Child  as  a  Member  of  the  State.  In  the  preceding 
paragraph  it  is  suggested  that  the  power  of  the  father  over  the 
child  came  to  be  exercised  as  a  representative  power — for  the  state. 
But  nothing  is  so  clear  as  that  the  patria  potestas  was  ordinarily  an 
institution  operating  in  the  interests  of  the  father  only  or  at  most  of 
the  family.  This  is  so  true  that  it  would  be  quite  right  to  treat  Sparta 
as  an  exception  rather  than  as  another  rule.  Sparta  was  a  military 
camp  during  much  of  its  comparatively  brief  existence,  never  em- 
bracing more  than  two-fifths  of  the  peninsula — "hollow,  lovely 

14  Lee,  "H/st.  Jurisprudence,"  p.  173.  15  Hughs,  "Ancient  Civilization"  I  608. 

16  Hearn,  "The  Aryan  Household,"  p.  93. 


THE    CHILD    IN    ANCIENT    CIVILIZATIONS  17 

Lacedaemon,"  as  Homer  wrote,  shut  in  by  the  glorious  mountains 
to  her  own  narrow,  intense  self.  Why  should  she  not  turn  herself 
to  the  defense  of  her  small  world?  and  why  should  she  not  do  her 
task  invincibly?  Why,  if  every  Spartan  were  to  be  a  hero  on  the 
battlefield,  should  not  all  interests  be  subordinated  to  those  of  the 
state,  and  the  child  trained  with  her  future  in  view?  Thus  it  was 
that  the  Spartan  had  to  expose  his  feeble  child  on  the  hills  for  the 
state's  benefit.  The  healthy  child  was  left  with  his  mother  only 
until  seven,  then  was  placed  in  the  common-school  or  gymnasium 
and  kept  at  the  expense  of  the  state.  The  parents  "had  no  part 
or  voice  in  the  education  of  their  children,  but  assisted  in' persuad- 
ing them  to  undergo  the  trials  and  hardships  without  flinching  or 
whimpering."  17  Not  only  was  the  aim  of  the  family  and  the 
state  entirely  one  in  regard  to  the  child,  but  the  co-operation  was 
complete  in  training  him.  The  modern  state  is  Spartan  in  the 
social  value  it  gives  the  child,  and  without  bearing  the  burden  of 
being  essentially  Spartan,  is  in  many  communities  beginning  to 
insist  on  an  analogous  right  to  superintend  the  fitting  of  the  child 
for  life  in  the  group.  (  Fortunately  there  exists  the'  fundamental 
difference  that  now  the  task  is  mediated  through  the  family  where 
the  family  proves  itself  to  be  adequate.  It  has  been  worth  the 
centuries  it  has  required,  to  learn  that  it  is  not  the  child  for  the 
social  body  or  the  family,  but  the  child  for  the  social  body  through 
the  family.  The  world  preferred  to  stumble  along  laboriously  into 
a  more  promising  and  satisfactory  solution  which  should  preserve 
its  most  sacred  institution.  Sparta  was  not  followed  because  the 
typical  Spartan  was  iiot  the  typical  man.  Let  the  dreamer  of  to- 
day who  sets  off  the  two  institutions  against  each  other  take  notice. 

17  Hughs,  "Ancient  Civilization,"  §  560. 


CHAPTER  III. 
THE  CHILD  AMONG  PRIMITIVE  PEOPLES 

It  is  plain,  surely,  that  the  status  of  the  child  depends  very 
largely  on  the  standard  the  group  sets  for  itself.  That  once  well 
formulated,  the  methods  through  which  conformity  to  it  is  de- 
manded will  work  themselves  out.  Penalties  for  non-conformity 
and  stimulations  to  conformity  are  in  order.  How  the  child  stands 
in  the  group  is  the  question  to  be  answered  in  each  case,  and  the 
ultimate  aim  is  the  determination  of  principles,  based  upon  obser- 
vation of  both  child  and  group — principles  that  will  effectively  aid 
us  in  preventing  delinquency  and  promoting  conformity  in  any 
group  whatever. 

The  nearer  we  are  to  primitive  life  the  more  delinquency  is 
couched  in  terms  of  failure  to  conform  to  a  standard  that  is  closely 
and  immediately  utilitarian.  The  highest  morality  is  effectiveness 
in  behalf  of  the  tribe.  To  be  a  brave,  uncowed  man,  a  good 
hunter  and  warrior  is  the  aim.  Therefore  what  is  most  detested 
and  condemned  is  cowardice  or  treachery,  and  a  multitude  of 
things  which  in  a  more  civilized  community  would  be  subjects  of 
legislation  and  not  at  all  countenanced,  are  in  a  primitive  group 
passed  by  as  thoroughly  incidental.  Often  there  is  no  punishment 
for  insolence,  thievery,  cheating  or  lying.  The  line  of  the  great 
good  is  nearer  to  the  instincts,  especially  those  of  gaming,  hunting 
and  fighting.  1 

Thus,  among  the  American  Indians  the  notion  has  pretty  gen- 
erally existed  that  the  boys,  who  were  to  be  the  warriors  and  pro- 
viders of  tomorrow,  were  to  be  permitted  to  do  almost  anything 
which  roused  the  warrior  spirit,  and  were  to  be  subjected  to 
nothing  which  served  to  dampen  their  ardor.  The  California 
Indian  child  was  never  flogged,  "as  it  was  thought  to.  break  his  ' 
spirit.'7  2  The  same  has  been  observed  in  Mexico,  (3)  and  of 
the  Arawaks  of  South  America.  Among  the  latter  a  parent  "will" 
bear  any  insult  or  inconvenience  from  his  child  tamely  rather  than 
administer  personal  correction."  4  "He  is  very  wicked"  is  the 
greatest  praise  to  be  accorded  a  parent  concerning  a  child  among 
the  Dyaks  of  Borneo.  5 

In  many  respects  the  power  of  the  parent  among  primitive 
peoples  is  absolute.  It  is  the  common  report  of  travelers  that 

1  Ratzel,  "Hist,  of  Mankind,"  vol.  i,  p.  441. 

2  Bancroft,  "Native  Races  of  the  Pacific  States,"  i,  437. 

3  Carl  I,umholtz,  "Unknown  Mexico,"  1902,  vol.  i,  p.  247. 

4  Hillhouse,  J.  R.  G.  S.  ii.  229. 

5  Roth,  "The  Natives  of  Sarawak  and  British  North  Borneo,"  103. 

18 


THE    CHILD    AMONG    PRIMITIVE    PEOPLES  19 

infanticide  is  practised,  (6)  and  that  the  sale  of  children  is  fre- 
quent. 7'  The  status  of  the  child  is  determined  by  the  group's 
manner  of  life,  which  is  usually  nomadic  and  on  a  war  basis. 
Therefore  we  expect  that  the  children  will  be  in  early  years  left 
largely  with  the  women,  to  be  instructed  in  the  traditions  of  the 
tribe,  in  elementary  woodcraft  and  in  all  the  matters  which  are 
regarded  as  the  special  interest  and  function  of  that  sex.  8  With 
the  distinction  between  the  sexes  usually  observed  among  primitive 
peoples  we  cannot  but  look  for  a  time  in  the  life  of  the  boy  when 
he  shall  leave  one  group  for  the  other — a  time  of  great  consequence 
to  him  and  marked  by  ceremonies  of  initiation  to  manhood.  9,  10 
It  is  not  to  be  supposed  that  during  early  childhood  the  child  had 
no  communication  of  an  intimate  sort  with  the  men  of  the  tribe, 
nor  that  he  received  no  instruction  from  his  father  or  paternal 
relatives.  The  fact  of  his  future  vocation  as  a  warrior  and  hunter 
guaranteed  such  oversight.  But  normally  there  was  a  definite  time 
of  transfer  from  maternal  or  family  control  to  tribal  membership 
and  citizenship,  just  as  there  was  among  the  Romans.  "Every 
Australian  native,"  say  Spencer  and  Gillen,  "so  far  as  is  known, 
has  in  the  normal  condition  of  the  tribe  to  pass  through  certain 
ceremonies  of  initiation  before  he  is  admitted  to  the  secrets  of  the 
tribe  and  is  regarded  as  a  fully  developed  member  of  it."  11  Then 
the  absolute  character  of  parental  authority  disappears;  often  the 
child  is  completely  independent  of  the  family  and  is  subject  only 
to  tribal  discipline.  12 

It  is  evident  that  throughout  the  child's  early  life  the  standard 
of  excellence  in  his  group  is  held  out  to  him,  and  everything  is 
calculated  to  brin^  him  into  conformity  with  it.  The  function  of 
the  family  with  the  child  is  in  terms  of  the  standard;  the  social 
body  is  conscious  of  its  unity.  The  group  is  in  general  greater 
than  the  family. 

In  all  this  we  see  a  simple  group  morality,  to  ignore  which  is 
to  »be  delinquent;  the  family  and  the  larger  group  co-operating  in 
furthering  conformity  and  discountenancing  non-conformity,  there 
being  always  'a  tendency  to  recognize  the  interdependence  of  all  in 
the  social  body.  This  tendency  most  vitally  affects  the  juvenile 
member  of  the  group,  his  status,  his  training,  his  treatment  in  case 
of  delinquency.  The  broadening  vision  of  things  reveals  mutual 
responsibility.  The  child  must  obey  the  voice  of  the  group;  the 
latter  must  protect  the  former.  Clearer  and  clearer  the  situation 
grows,  here  and  there  crystallizing  into  laws,  everywhere  promot- 
ing a  higher  ideal  for  the  child,  and  always  creating  the  machinery 
for  more  perfect  harmony.  The  growth  is  slow;  generations  are 
days.  But  this  tendency  prophesies  a  time  when  the  child  shall 
have  become  a  figure  quite  central  in  the  consideration  of  the 
group.  That  time  is  here.  But  it  is  easier  to  learn  that  the  Sab- 
bath is  made  for  man  than  that  the  group  is  created  for  the  child. 

6  Bancroft,  "Native  Races  of  the  Pacific  States,"  i,  169,  197,  242.  7  Ib.  i,  219. 

8  Eastman,  "Indian  Boyhood,1'  loc.  cit. 

9  Featherman,  "Social  History  of  the  Races  of  Mankind,"  ii,  303. 

10  Bonwick,  "The  Daily  Life  of  the  Tasmanians,"  60. 

11  "Native  Tribes  of  Central  A »stra/;a,"  212. 

12  Bancroft,  "Native  Races  of  the  Pacific  States,"  i:8o,  412. 


PART  II 

THE  DEVELOPMENT  OF  SPECIAL  LEGISLATION  FOR 
THE  JUVENILE  DELINQUENT 


CHAPTER  IV. 
EARLY  AND  INCIDENTAL  LEGISLATION 

The  foregoing  sections  have  dealt  with  conditions  which  de- 
manded only  unwritten  law.  Furthermore,  nothing  is  observable, 
as  a  rule,  which  concerns  itself  with  the  special  class  now  so  well 
differentiated  as  to  bear  the  name  "juvenile  delinquent."  Such  a 
class  implies  closely  formulated  laws  and  machinery  for  enforcing 
them,  and  something  akin  to  modern  urban  life,  with  dense  popu- 
lation, and  life  in  many  respects  abnormal  and  loose.  What  early 
child  life  was  and  what  forces  controlled  it  were  the  real  inquiries. 
Having  ascertained  some  of  the  facts,  we  are  ready  to  proceed  to 
the  study  of  some  of  the  early  and  incidental  legislation  which  is  a 
sure  index  of  the  emergence  of  the  class  giving  rise  to  our  inquiries. 

The  earliest  recognition  of  the  rights  of  children  was  evidently 
in  regard  to  property.  As  a  matter  of  policy  the  early  Caesars 
granted  to  soldiers  the  right  to  retain  all  properties  acquired  in 
war;  it  no  longer  belonged  to  their  fathers.  In  178  A.  D.  it  was 
decreed  that  mother  and  son  "should  stand  in  immediate  line  of 
succession,  an  evidence  of  the  fast-growing  feeling  of  the  leading 
jurists.  I  In  the  Justinian  code  of  527  the  laws  of  family,  property 
and  succession  were  so  changed  that  we  may  say  that  legally  the 
child  had  become  a  person.  2  But  progress  was  exceedingly  slow. 
"In  the  seventh  century  even  the  church  was  compelled  to  allow 
that  in  case  of  necessity  an  English  father  might  sell  into  slavery 
a  son  who  was  not  yet  seven  years  old.  An  older  boy  could  not 
be  sold  without  his  consent."  3  The  same  was 'true  on  the  Conti: 
nent  among  the  Teutons  even  Mte  in  the  Middle  Ages,  although 
the  exercise  of  the  right  seems  to  have  become  obsolete.  4 

In  this  general  attitude  towards  the  child  in  the  law  of  domestic 
relations  there  was  promise  of  emancipation.  But  there  was  still 
another  obstacle.  The  delinquent  child  must  cdme  under  the 
criminal  law,  and  there  were  yet  centuries  to  come  before  there 
could  be  clear  distinction  between  child  and  a^dult  on  this  basis. 
Punishment  took  little  account  of  the  person  committing  a  forbid- 
den act,  or  his  motive;  its  prime  consideration  was"  the  act,  or  the 
one  injured,  and  its  spirit  that  of  vengeance.  So  long  as  this  was 
true,  a  criminal  was  a  criminal,  irrespective  of  his  age,  and  the 
only  possible  alleviation  of  the  situation  was,  if  the  delinquent 
were  a  child,  to  neglect  to  bring  him  to  trial  at  all,  to  ignore  his 
delinquency,  which  was  neither  wise  nor  common. 

i  I«ee,  "Historical  Jurisprudence,"  pp.  266-7.  2  Ib.  306-7. 

3  Pollock  and  Maitland,  "Hist,  of  English  Law,"  ii,  436-7. 

4  Hearn,  "Aryan  Household,"  93. 

•23 


24  TREATMENT    OF    JUVENILE    DELINQUENTS 

The  early  observation  of  the  close  bond  between  dependency 
and  delinquency  furnished  another  working  direction.  Children 
who  were  neglected  or  vagabond  inevitably  failed  to  observe  laws. 
To  prevent  such  from  becoming  delinquent  was  the  aim  of  much  of 
the  early,  incidental  legislation.  The  Apprenticeship  laws  of  the 
time  of  Henry  the  Eighth  (1491-1547)  provided  that  children  be- 
tween the  ages  of  5  and  14  who  were  found  begging  or  unemployed 
were  to  be  apprenticed  to  tradesmen.  Under  Elizabeth  (1533- 
1603)  they  were  sent  to  the  workhouse.  In  1756,  a  society  was 
formed  which  furnished  clothing  for 'these  unfortunates  and  sent 
them  off  to  sea  whenever  possible.  The  Philanthropic  Society  in 
1788  founded  the  Farm  school  at  Redhill — the  forerunner  of  many 
private  institutions  soon  to  follow.  All  this  was  preventive  work, 
but  often  of  a  doubtful  sort. 


CHAPTER  V. 
SPECIAL  LEGISLATION  IN  VARIOUS  STATES 

/.  England.  While  the  patria  potestas  had  full  force  in  Rome, 
the  father  was  responsible  for  the  acts  of  his  children  just  as  he  was 
as  owner  responsible  for  the  acts  of  his  slaves  and  animals.  1  But 
when  this  was  broken  up  and  the  child  became  legally  a  person, 
there  went  along  with  what  rights  he  had  certain  responsibilities. 
In  criminal  law  there  grew  up  a  feeling  that  the  child  under  seven 
should  be  held  responsible  for  nothing.  Among  the  Germanic 
peoples  usually  the  child  did  not  assume  rights  and  responsibilities 
until  the  age  of  twelve,  when  he  was  formally  invested  with  the 
implements  of  war.  Early  English  law  hesitated  between  the  two 
ages.  In  Anglo-Norman  days  the  age  of  twelve  was  favored, 
"while  a  seven-year  limit  appears  in  later  criminal  law  as  the  sub- 
ject of  a  presumption  against  criminal  intent,"  the  influence  being 
probably  Roman.  2  xAt  the  same  time  there  was  a  strong  tendency 
in  practice  to  consider*the  intent  of  the  action  immaterial.'  Thus, 
whenever  there  was  manifested  a  disposition  to  exempt  the  infant 
from  punishment  because  of  his  tender  years,  it  was  forbidden 
because  age  and  intent  theoretically  had  nothing  to  do  with  the 
case.  Until  the  person  became  the  centre  of  attention  in  criminal 
cases,  the  feelings  of  judge  or  lawyer  had  to  be  satisfied  if  at  all 
under  the  guise  of  some  device  or  irregularity.  Early  in  the  sev- 
enteenth century  the  infant  was  ranked  with  the  lunatic  as  "liable 
civilly  on  the  ground  that  the  intent  (i.  e.  bad  intent,  bad  motive) 
was  immaterial."  3  This  was  a  miserable  compromise.  Gradual-' 
ly  the  Roman  influence  grew  until  it  became  English  common  law 
that  the  child  under  7  was  exempt  from  punishment  as  incap- 
able of  entertaining  criminal  intent.  A  like  presumption  was 
allowed  for  those  between  7  and  14,  but  it  might  be  rebutted. 
After  14  one  was  presumed  to  have  sufficient  capacity  and  must 
affirmatively  show  the  contrary.  4  It  is  not  necessary  to  follow 
this  development  closely;  the  emergence  of  the  child  as  a  legal 
person  is  clear  in  the  observation  of  typical  cases  here  and  there  in 
legal  history. 

There  was  no  significant  movement  in  England  before  the 
second  quarter  of  the  nineteenth  century.  The  law  of  August  10, 
1838,  provided  for  the  establishment  of  a  juvenile  prison  at  Park- 
hurst,  and  the  treatment  of  the  inmates  was  left  largely  to  the 
discretion  of  the  officials.  The  preamble  to  the  law  indicates  that 

1  O.  W.  Holmes,  The  Common  I,aw,  pp.  6  ff. 

2  J.  H.  Wigmore  in  Harvard  L,aw  Review,  vii,  447.  3  Ib.  vii,  448. , 
4  Tiffany,  Persons  and  Domestic  Relations,  pp.  401-2.  ,, 

25 


26  TREATMENT    OF   JUVENILE    DELINQUENTS 

the  Queen  had  been  in  the  habit  of  pardoning  juvenile  offenders  to 
the  care  of  private  charitable  institutions.  But  such  institutions 
refused  to  undertake  the  responsibility  and  care  of  the  harder 
cases.  "The  same  difficulty  is  experienced  today  in  England.  5 
In  26  years  this  prison  was  closed,  partly  because  the  private 
institutions  had  taken  advantage  so  largely  of  their  opportunity  to 
relieve  the  state,  and  partly  because  superceded  by  the  institutions 
established  in  accord  with  the  Reformatory  and  Industrial  Schools 
Act  of  1865  and  similar  acts.  These  institutions  have  never  been 
provided  by  the  state.  Reformatories  had  been  founded  privately, 
and  after  1854  they  were  certified  by  the  Secretary  of  State  and 
inspected  by  an  Inspector  of  Prisons.  In  1866  a  special  Inspector 
of  Reformatories  was  appointed.  The  Reformatories  provided  for 
offenders  under  16,  for  not  less  than  two  nor  more  than  five  years, 
"in  addition  to  imprisonment  in  gaol  not  less  than  fourteen  days" 
(1854),  which  was  later  amended  to  ten  days  for  both  England  and 
Scotland.  According  to  Sec.  14  of  the  Law  of  1866  no  offender 
under  10  was  to  be  sent  to  a  reformatory,  unless  "either  the  sen- 
tence were  passed  at  Assizes  or  Quarter  Sessions,  or  he  had  been 
previously  charged  with  an  offence  punishable  with  penal  servitude 
or  imprisonment."  Thus  the  English  Reformatory  is  closely  re- 
lated to  the  Prison.  Except  as  affected  by  changes  in  other  insti- 
tutions and°~by  minor  changes  in  the  laws,  the  English  Reform- 
atories exist  today  (1906)  practically  as  they  did  a  quarter  of  a 
century  ago.  6 

The  Industrial  School  is  the  mainstay  in  England  in  juvenile 
correction.  Dating  back  to  1854  (Scotland)  and  1857  (England), 
it  has  been  variously  adapted  to  include  mendicant  and  destitute 
and  morally  imperilled  children  in  general.  The  age  limit  is  14, 
and  at  that  age  the  parent  may  claim  the  children  and  return  them 
to  any  sort  of  environment. 

The  lines  protecting  the  youth  were  a  bit  more  closely  drawn 
by  the  Elementary  Education  Act  of  1876,  providing  for  day  in- 
dustrial schools  and  the  more  extended  use  of  industrial  schools. 
The  Summary  Jurisdiction  Act  of  1879  and  the  Probation  of  First 
Offenders  Act  of  1887  are  based  upon  the  idea  of  summary  hearing 
fr>"  first  offences  and  dismissal  upon  payment  of  costs,  with  admon- 
it  i;  or  suspension  qf  sentence  dependent  upon  good  behavior, 
and  in  graver  cases  with  the  alternative  of  payment  of  a  fine.  7 
The  Howard  Association  laments  in  its  report  of  1897  that  the  Act 
of  1887  is  not  used  to  the  proper  extent.  This  is  unfortunate, 
indicating  the  reluctance  of  the  English  people  to  fairly  enter  into 
the  probation  system,  so  popular  in  the  United  States. 

The  truant  schools  of  England  are  very  effective,  not  only  keep- 
ing the  child  from  the  street,  but  affording  him  instruction  of  a 
very  practical  sort.  There  is  also  a  class  of  youths  in  English 
prisons  called  "juvenile  adults"  (over  sixteen)  who  are  subjects  of 

5  Report  of  Comptroller  of  Prisons,  New  South  Wales,  on  Prisons  of  Europe  and  Amer- 
ica, 1904,  p.  51. ..        6  See  Cane,  "Punishment  of  Juvenile  Offenders,"  p.  202  ff. 
7  See  Drahms,  "The  Criminal,"  305-6. 


SPECIAL    LEGISLATION    IN    VARIOUS    STATES  27 

special  treatment,  but  this  is  not  a  significant  thing.  Industrial 
and  truant  schools  are  rendering  great  service.  There  seems  to  be 
some  hesitation,  however,  in  England  in  claiming  full  power  over 
the  child  for  the  state,  even  when  the  parent  has  proven  his  in- 
ability to  fill  a  parent's  place  for  him. 

2.  France.  In  the  French  law  of  17 91. the  distinction  was  clear- 
ly drawn  between  the  child  who  had  acted  with  discernment  of  the 
meaning  of  his  act  and  the  one  who  had  not.  The  former  was 
rigorously  punished  as  we  view  the  matter,  but  little  allowance  be- 
ing made-  for  youth,  while  the  latter  was  either  returned  to  his 
family  or  sent  to  a  house  of  correction  to  remain  not  later  than  his 
twentieth  year.  8  All  the  past  experience  was  formulated  in  the 
Code  Penal  of  1810.  Separation  of  young  and  old  offenders  was 
contemplated,  but  was  not  carried  out.  9  This  idea  was  ahead  of  its 
time,  and  indeed  in  the  small  prisons  would  have  been  impossible. 
The  second  quarter  of  the  century  was  one  of  experiment  and 
progress.  Demetz  and  Lucas  advanced  the  belief  that  agricultural 
training  would  win  the  delinquents  over  to  an  orderly  life.  Their 
institutions  were  subsidized  by  the  state,  and  became  the  models 
for  others  in  private  hands.  The  legal  expression  of  this  period 
came  August  5,  1850,  and  the  advance  is  brought  out  into  relief. 
The  right  of  youthful  prisoners  of  both  sexes  under  17  to  religious, 
moral  and  trade  education  was  recognized,  and  the  sexes  were 
separated.  "Colonies  penetentiares"  with  strenuous  discipline 
and  agricultural  and  trade  education  took  the  place  of  the  houses 
of  correction.  These  were  either  public  or  private.  The  children 
given  more  than  two  years  sentence  were  sent  to  "colonies  correc- 
tionelles,"  public  institutions  in  France  and  Algiers.  Another 
feature  was  that  those  liberated  were  in  some  sense  given  over  to 
the  care  of  public  charity.  10  This  tendency  is  emphasized  in  the 
law  of  July  24,  1889,  "for  the'protection  of  children  maltreated  or 
morally  abandoned,"  which  protection  is  extended  by  the  charity 
authorities,  and  in  the  law  of  July  24,  1898,  which  provides  that 
the  child  shall  be  given  over  to  a  parent,  or  other  person,  or  char- 
itable institution  or  cared  for  from  the  public  charity  funds.  11 
In  the  former  law  the  right  of  the  state  to  take  the  child  from  the 
family  in  which  it  was  morally  imperilled,  was  recognized;  the 
state  exercised  its  power  not  through  the  criminal  law  but  through 
the  arm  of  charity.  Again  this  path  is  followed  in  the  slight 
changes  of  the  law  of  June,  1904.  This  seems  to  be  characteristic 
of  the  French  view  of  the  situation.  It  is  another  recognition  of 
the  close  relation  of  dependency  and  delinquency,  but  other  coun- 
tries have  thus  fat  chosen  to  separate  the  classes. 

J.  Germany.  Up  to  the  middle  of  the  nineteenth  century  the 
Roman  and  canonical  law  contention  that  the  child  under  seven  is 
absolutely  incapable  of  crime  was  nominally  in  force  in  German 
states,  but  as  elsewhere  its  complete  action  was  rendered  impos- 

8  Raux,  "Nos  Jeunes  De'tenvs,"  221  ff.  9  Krohne  "Gefa.engniskunde,"  83. 

10  Raux.  "ATos  Jeunes  Pe'tenus,"  261. 

11  "Tra/'te*  Theoretiqtte  et  Pratique  D' Assistance  Publique,"  H.  Derouin,  pp.  27-30. 


28  TREATMENT    OF   JUVENILE    DELINQUENTS 

sible  because  of  the  strength  of  the  idea  of  retribution  and  terror- 
izing. In  several  German  states  there  were  two  legal  divisions  of 
children,  those  of  absolute  and  those  of  relative  responsibility. 
The  ages  are  rather  higher  than  we  are  accustomed  to  think  of, 
the  first  period  varying  in  its  higher  limit  between  10  and  12  years 
and  the  second  between  14  and  21.  Bavaria  had  such  a  law  as 
early  as  1813,  Saxony  in  1838  and  Wirtemberg  in  1839.  The 
Prussian  code  of  1851  followed  the  French  lead,  turning  aside 
from  the  inflexible  law  and  leaving  it  to  the  judge  to  determine 
whether  the  child  had  acted  with  an  understanding  of  his  action. 
The  law  of  May  15,  1871,  (somewhat  altered  in  1876)  the  first  that 
might  with  justice  be  spoken  of  as  German  law,  declared  that 
criminal  capacity  does  not  exist  in  the  child  under  12,  that  it  is 
doubtful  between  12  and  18,  and  that  even  beyond  18  there  is  no 
legal  presumption  for  it,  i.  e.  it  must  be  affirmatively  proven. 
This  advancing  of  the  ages  and  breaking  from  the  hard  law  which 
regarded  only  age  and  not  individual  development  was  no  small 
step. 

Yet  the  close  of  the  century  found  the  child  in  Germany  under 
a  penal  code  that  carried  along  with  its  decisions  the  stigma  of 
crime,  the  pernicious  short  term  of  confinement  in  an  institution  of 
reform  (Bessentngsanstolf),  and  limited  employment  of  the  deferred 
sentence,  i.  e.  sentence  which  is  not  operative  until  a.subsequent 
act  of  wrong  again  brings  the  offender  before  the  court.  In  1900 
Gernlany  embodied  her  experience  with  juvenile  delinquents  in  a 
"Law  of  Educational  Guardianship"  (12)  with  the  result  that  many 
of  the  "leaks"  were  stopped  and  child-saving  tremendously  pro- 
moted. Following  the  American  pattern,  it  was  made  possible 
that  any  child  in  any  manner  morally  imperilled  could  be  brought 
before  the  court  and  dealt  with  without  criminal  taint  and  irrespec- 
tive of  the  claims  of  incompetent,  unfit  parents.  In  these,  respects 
Germany  is  abreast  of  the  best  legislation.  Her  particular  contri- 
bution lies  in  having  made  specific  financial  provision  for  every 
possible  case.  Our  own  laws  are  often  rendered  inoperative  by 
lack  of  funds. 

4.  The  United  States.  We  can  afford  to  pass  by  the  legisla- 
tion of  other  countries  as  either  duplicating  that  of  England, 
France  or  Germany  or  as  not  in  any  manner  significant.  Italy 
has  been  greatly  interested  in  the  psychological,  physiological  and 
pathological  aspects  of  crime,  both  of  adults  and  juveniles,  but 
has,  perhaps  for  that  very  reason,  contributed  nothing  of  especial 
value  in  the  treatment  of  juvenile  delinquents  who  are  not  crim- 
inal.  The  countries  of  northern  Europe  offer  nothing  advanced. 
Like  the  others,  they  have  depended  largely  on  private  interest 
and  private  means  to  do  what  little  has  been  done.  13 

As  in  England,  the  great  word  of  the  nineteenth  century  for  the 
United  States  in  regard  to  juvenile  delinquents  was  "correction." 
W- 

12  Das  Preussische  Fuerzorgeerziehungsgesetz  vom  2  Juli,  1900,  C.  von  Massow. 

13  Krohne,  "Gefaengnisknnde,"  loc.  cit. 


SPECIAL    LEGISLATION    IN    VARIOUS    STATES  29 

Separate  confinement  of  children  in  prison  and  their  assignment  to 
reformatories  with  a  view  to  their  correction  took  precedence  over 
any  preventive  measures.  As  a  matter  of  fact  this  correction  was 
undertaken  to  prevent  crime;  now  we  are  beyond  the  prevention 
of  crime  in  the  ordinary  sense.  Our  aim  would  find  itself  accom- 
plished far  short  of  that.  The  end  of  the  century  revealed  to  us 
the  fact  that  ordinarily  we  are  not  dealing  with  crime  at  all  in  deal- 
ing with  children.  The  break  between  the  centuries  marks  a  pass- 
ing from  the  reformatory  to  the  probation  system  as  the  centre  of 
attention.  1825  was  the  year  of  the  first  reformatory  in  this  coun- 
try, the  House  of  Refuge  of  New  York,  and  uninterruptedly  we 
have  developed  this  institution  until  the  Elmira  Reformatory  and 
many  others  which  have  followed  its  lead  stand  as  models  for  the 
world.  14  To  trace  that  development  here  is  unnecessary.  More 
profitable  would  be  the  noting  of  the  growth  of  certain  accessorial 
ideas  now  central  in  our  system,  namely  the  probationary  powers 
of  the  court,  the  terminable  sentence  and  the  parental  power  of  the 
state.  All  these  are  a  reflection  of  the  rapidly  changing  sentiment 
of  people  who,  as  teachers,  psychologists,  parents,  administrators 
in  many  capacities,  were  creating  a  new  child-world.  This  new 
world  proves  incompatible  with  much  that  is  in  the  old,  therefore 
an  expression  of  the  situation  in  new  laws  and  new  institutions. 
Carrying  along  with  us  our  old  institutions,  public  and  private, 
and  much  of  our  former  mental  and  legal  equipment,  and  careful 
and  conservative  as  to  innovations,  we  have  entered  into  a  new  era, 
looked  upon  as  experimental  by  many,  but  full  of  such  promise 
and  achievement  and  backed  by  so  much  sanity  and  experience 
that  we  are  very  confident  in  the  working  directions  adopted. 

As  early  as  1853  Mary  Carpenter  in  her  ''Juvenile  Delinquents" 
tells  of  a  recommendation  rejected  by  Parliament  in  which  were 
closely  foreshadowed  the  terminable  sentence  and  large  probation- 
ary powers  of  the  court.  This  came  from  students  of  juvenile 
delinquency  and  was  evidently  premature.  It  was  not  probation 
in  our  present  sense,  being  merely  a  form  of  suspended  sentence 
with  no  oversight  except  parental.  This  was  already  present 
in  the  United  States  and  England  in  the  informal  and  sympathetic 
administration  of  the  laws  by  intelligent  and  kindly  judges.  To 
make  the  necessary  incorporation  of  it  in  legal  form  was  left  as  a 
task  6f  the  twentieth  century. 

The  actual  recognition  and  approval  of  the  probation  system 
which  employs  the  probation  officer  professionally  is  found  in  the 
legislation  of  Michigan  and  Massachusetts  in  the  '70s.  15  The 
parent  of  the  probation  system  was  not  this  or  that  legislator  or 
legislature,  but  common-sense  understanding  of  child  nature.  It 
is  a  negative  credit  to  have  framed  a  law  at  the  end  of  the  nine- 
teenth century  providing  apparatus  for  the  treatment  of  the  child 
as  a  child  and  not  as  a  criminal.  That  apparatus  will  later  be 
considered.  Just  now  it  is  enough  to  analyze  in  the  large  the  legal 

14  Drahms,  "The  Criminal,1'  Chap,  on  Juveniles.  15  Charities,  Jan.  7, 1905. 


30  TREATMENT    OF    JUVENILE    DELINQUENTS 

temper  of  the  United  States  towards  the  child. 

The  United  States  is  indebted  directly  to  England  for  the 
transmission  of  the  old  common-law  heritage  of  the  responsibility 
of  the  child  for  his  acts.  But  the  former  country  has  proceeded 
with  considerable  independence  of  all  countries  to  the  advanced 
position  she  occupies  at  present.  Some  of  the  comparatively  re- 
cent legal  expressions  are  most  instructive.  One  writer  says, 
"The  rights  of  parents  result  from  their  duties,  being  given  them 
by  law  to  aid  in  the  fulfillment  of  their  obligations  *  *  *  This  is 
the  true  foundation  of  parental  power."  16  "The  parent  has  only 
a  moderate  degree  of  authority  over  the  child's  person,  which 
authority  relaxes  as  the  child  grows  older."  17  "The  cardinal 
principle  *  *  *  is  to  regard  the  benefit  of  the  infant,  to  make  the 
welfare  of  the  children  paramount."  18  This  is  a  tremendous  con- 
cession; the  child  is  truly  a  person  and  the  attitude  of  the  state  is 
broadly  social.  The  child's  welfare  and  conduct  are  of  concern  to 
it,  therefore  it  will  assure  the  child  of  fair  treatment.  Schouler 
further  generalizes,  (19)  "In  this  country  the  doctrine  is  universal 
that  the  courts  of  justice  may,  in  their  sound  discretion,  and  when 
the  morals  or  safety  or  interests  of  the  children  strongly  require  it, 
withdraw  their  custody  from  the  father  and  confer  it  upon  the 
mother,  or  take  the  children  from  both  parents  and  place  the  care 
and  custody  of  them  elsewhere."  Both  he  and  Hochheimer  (20) 
contend  that  there  is  far  more  hesitancy  in  England  in  the  State 
exercise  of  parental  function  than  in  America.  Here  the  right  of 
the  state  is  fully  admitted  and  clearly  expressed.  Nearly  fifteen 
years  ago,  September  1891,  Mr.  Charles  Martindale  wrote  in  the 
"North  American  Review":  "It  is  a  vulgar  supposition  that  the 
parent  has  some  natural  property  in  his  children;  that  children 
'belong  to  their  parents.'  Such  is  not  the  legal  status  of  the  in- 
fant. From  the  time  of  his  birth,  the  infant  is  a  subject  of  the 
State,  having  an  individuality  separate  from  its  parents,  with  dis- 
tinct rights  of  person  ano^  property,  with  separate  obligations  to 
and  claims  upon  the  sovereign.  The  only  right  of  the  parent 
recognized  by  the  law  is  one  of  guardianship.  The  right  and 
custody  of  their  children  *  *  *  comes  to  parents  not  by  the  course 
of  nature,  not  by  birth  or  blood,  but  is  derived  from  the  State,  and 
must  be  exercised  under  the  authority  and  supervision-  of  the  State. 
*  *  *  Parents  are  intrusted  with  the  persons  and  education  of 
their  children  under  the  natural  presumption  that  the  children  will 
be  properly  taken  care  of  and  brought  up  with  a  due  education  in 
literature,  morals  and  religion,  and  that  they  will  be  treated  with 
kindness  and  affection.  But  whenever  this  presumption  is  re- 
moved *  *  *  the  Court  of  Chancery  may  interfere  and  deprive 
them  of  their  custody  and  appoint  a  suitable  person  to  act  as 
guardian."  The  paper  further  indicates  that  this  has  long  been 
the  theory  of  the  matter.  Yet  in  practice  it  is  not  only  compar- 

16  Schouler,  "Domestic  Relations,"  sth  ed.  383.  17  Ib.  384.  18  Ib.  390. 

19  Ib.  389.  20  "Custody  of  Infants,"  pp.  33-34. 


SPECIAL    LEGISLATION    IN    VARIOUS    STATES  31 

atively  new,  but  is  strictly  limited.  In  France,  Germany  and  the 
United  States  it  is  the  presupposition  to  all  action.  On  it  are 
built  the  special  Children's  Court  and  the  whole  Probation  System, 
and  the  use  that  is  made  of  the  various  classes  of  institutions  to 
which  children  are  assigned  from  the  Court. 

This,  as  applied  to  the  definite  situation,  is  mediated  in  the 
various  Juvenile  Court  Laws  of  many  States  of  the  Union.  Nine- 
teen States  have  such  laws  and  six  others  have  a  probation  system 
in  operation  without  the  special  court.  21  In  general  the  elements 
of  the  law  are  present  in  the  California  Law,  approved  Feb.  26, 

1903.  In  the  first  section  of  the  law,  the  "Juvenile  Delinquent" 
is  defined,  also  the  "Dependent"  who  comes  under  the  same  law: 

)"This  act  shall  apply  only  to  children  under  the  age  of  sixteen 
years  not  now  or  hereafter  inmates  of  a  State  institution,  or  any 
reform  school  for  juvenile  offenders,  or  any  institution  incorporated 
under  the  laws  of  the  State  for  the  care  and  education  of  children. 

For  the  purposes  of  this  act  the  words  'dependent  child'  shall 
mean  any  child  under  the  age  of  sixteen  years  that  is  found  beg- 
ging or  receiving  or  gathering  alms  (whether  actually  begging  or 
under  the  pretext  of  selling  or  offering  for  sale  anything)  or  being 
in  any  street,  road  or  public  place  for  the  purpose  of  so  begging, 
gathering  or  receiving  alms;  or  that  is  found  wandering  and  not 
having  any  home  or  settled  place  of  abode,  or  proper  guardianship, 
or  visible  means  of  subsistence;  or  that  is  found  destitute,  or  whose 
home,  by  reason  of  neglect,  cruelty  or  depravity  on  the  part  of  its 
parents,  guardian  or  other  person  in  whose  care  it  may  be,  is  an 
unfit  place  for  such  child;  or  that  frequents  the  company  of  reputed 
criminals  or  prostitutes,  or  that  is  found  living  or  being  in  any 
house  of  prostitution  or  assignation;  or  that  habitually  visits,  with- 
out parent  or  guardian,  any  saloon,  place  of  entertainment  where 
any  spirituous  liquors,  or  wine  or  intoxicating  or  malt  liquors  are 
sold,  exchanged  or  given  away;  or  who  is  incorrigible;  or  who  is  a 
persistent  truant  from  school.  The  words  'delinquent  child'  shall 
include  any  child  under  the  age  of  sixteen  years  who  violates  any 
law  of  this  State  or  any  ordinance  of  any  town,  city  or.  county  of 
this  State." 

Sections  follow  providing,  "for  the  appointment  of  probation 
officers,  and  prescribing  their  duties  and  powers;  providing  for 
the  separation  of  children  from  adults  when  confined  in  jails  or 
other  institutions;  providing  for  the  appointment  of  boards  to  in- 
vestigate the  qualifications  of  organizations  receiving  children 
under  this  act,  and  prescribing  the  duties  of  such  boards;  and 
providing  when  proceedings  under  this  act  shall  be  admissible  in 
evidence."  22 

Specifically  the  recent  laws  have  also  made  provision  for  bring- 
ing any  child  who  would  come  under  the  act  to  the  attention  of  the 
court  by  any  individual  who  judges  the  child  subject  for  such 

21  Charities,  Jan.  7,  1905. 

22  See  "International  Prison  Commission— Children's  Courts  in  the  United  States," 

1904,  House  Doc.  No.  701,  pp.  165  ff. 


32  TREATMENT    OF   JUVENILE    DELINQUENTS 

attention,  whether  that  person  be  a  representative  of  the  law  in 
any  capacity  or  not;  (23)  furthermore  that  no  child  under  12  (14  in 
Colorado)  shall  be  imprisoned  in  jail  under  any  circumstances;  (24) 
that  the' religious  preferences  of  the  parent  shall  be  respected  in 
the  assignment  of  the  child  to  an  institution  or  family;  (25)  that 
the  child  may  under  proper  conditions,  if  dependent,  be  sur- 
rendered by  the  one  having  the  right  to  so  dispose  of  the  child  for 
adoption.  26 

More  significant,  even,  than  these  specific  provisions  is  the 
general  clause  appended  in  practically  identical  phraseology  in  all 
the  State  Laws: 

"This  act  shall  be  liberally  construed,  to  the  end  that  its  pur- 
pose may  be  carried  out,  to- wit:  That  the  care,  custody  and  disci- 
pline of  a  child  shall  approximate  as  nearly  as  may  be  that  which 
should  be  given  by  its  parents,  and,  in  all  cases  where  it  can  be 
properly  done,  the  child  be  placed  in  an  approved  family,  with 
people  of  the  same  religious  belief,  and  become  a  member  of  the 
family,  by  legal  adoption  or  otherwise."  27 

5.  Conclusion.  The  tendencies  observable  long  before  there 
emerged  any  special  legislation  in  behalf  of  juvenile  delinquents 
are  now  settling  down  into  working  order  as  a  part  of  our  legal 
and  institutional  equipment.  Some  may-say  that  very  early  the 
child  was  quite  as  truly  a  member  of  the  stgte  as  of  the  family. 
It  is  evidently  true  that  as  a  subject  for  discipline  and  general 
parental  oversight  he  was  never  a  member  ^oT^fhe  state.  That 
body's  first  care  for  him  specifically  was  in  protecting  him  in  his 
property  rights  from  the  cupidity  of  dishonest  men.  Criminal  law 
of  the  state  never  went  farther  than  barely  to  recognize  that  he 
was  not  an  adult;  it  never  defined  him.  It  accorded  him  confine- 
ment in  prison  apart  from  adults,  and  there  he  waited  to  be  dis- 
covered and  set  up  in  his  rightful  place.  It  was  the  teacher  and 
the  psychologist  and  the  moralist  in  his  many  capacities  who 
rescued  him.  Through  the  efforts  of  such  it  may  be  said  with 
some  justice  that  the  modern  sculptor  of  unfortunate  childhood 
when  he  carves  a  child  carves  a  child;  not  a  miniature  man,  but  an 
embryo  man. 

We  have  yet  to  complete  the  learning  of  one  supreme  lesson — 
the  same  lesson  that  our  world  of  labor  in  all  its  distress  cannot 
learn,  but  must  as  the  alternative  to  its  misery.  Law  is  a  resul- 
tant thing,  only  a  somewhat  more  final  expression  of  experience 
gained,  in  this  case,  from  long  dealing  with  the  child  and  careful 
study  of  his  nature  and  his  activities.  But  law  may  be  persistent, 
conservative  to  the  point  of  harmful  obstinacy  when  questioned  by 
a  new  mass  of  experience  and  new  judgments  even  of  expert 
specialists.  Such  has  been  the  case.  We  put  a  halo  over  law. 
We  must  put  a  halo  over  something  which  shall  be  final  authority 

23  Sec.  4,  Illinois  Law.    See  "Juvenile  Courts,"  2nd  ed.  p.  61.    Compiled  by  T.  D.  Hur- 
ley, 1904.  24  Sec.  n,  Illinois  Law;  Sec.  9,  California  Law.  25  Sec.  17,  Illinois  Law. 
26  Illinois  Law,  Sec.  15.           27  Sec.  13,  California  Law. 


SPECIAL    LEGISLATION    IN    VARIOUS    STATES  33 

for  us.  But  that  halo  becomes  a  dark  cloud  obscuring  truth  and 
right  when  it  imparts  to  Law  absolute  finality  and  perfection. 
Law  is  a  secondary  thing,  derived  from  and  generalizing  experi- 
ence. We  are  getting  a  tremendous  amount  of  new  experience  in 
regard  to  the  child,  which  must  be  incorporated  into  the  laws  and 
they  must  be  flexibly  enough  interpreted  and  administered  to  favor 
child  nature.  This  brief  glance  at  the  matter  of  the  status  of  the 
child  through  the  ages  ought  to  convince  us  that  progress  has  been 
criminally  slow.  The  conservatism  of  Law  has  been  one  reason 
for  this,  especially  in  times  since  Law  began  to  be  expressed  more 
formally.  Let  this  never  be  charged  again.  Let  Law  hold  itself 
open  in  spirit;  let  legislators  and  administrators  make  and  use 
laws  not  as  an  end  but  as  a  means.  In  such  times  as  these  it 
should  be  a  corallary  to  every  law  concerning  juveniles  that  it  is 
soon  to  be  remodelled  or  replaced  if  the  interest  of  the  children 
and  our  better  understanding  of  them  demand  it. 

If  we  were  to  refrain  from  looking  into  the  future  we  might  say, 
after  tracing  the  development  of  sentiment  concerning  the  child 
and  the  reluctant  assignment  to  him  of  the  place  of  a  legal  person, 
that  our  present  institutions  which  really  assure  him  his  place  are 
the  flower  of  it  all.  But  already  the  prophet  voice  is  heard  crying 
the  hope  that  we  shall  not  long  have  to  endure  many  of  the  exist- 
ing features  even  of  the  special  juvenile  court  or  the  probation 
system,  and  that  the  institutions  to  which  we  have  to  send  children 
may  soon  lose  all  the  characteristics  that  they  have  inherited  from 
another  regime,  and  reflect  more  consistently  the  spirit  of  the 
modern  view  of  childhood  unfortunately  or  accidentally  delinquent. 
In  recent  years  we  have  come  at  the  matter  with  a  rush,  and  have 
swept  away  injustices  and  in  a  multitude  of  details  begun  to  recon-- 
struct  our  apparatus.  There  is  great  promise  that  the  momentum 
gained  is  such  that  we  shall  not  be  condemned  to  too  early  crystal- 
lization of  principle  or  too  finally  committed  to  methods.  Progress 
here  as  elsewhere  consists  in  a  large  degree  in  keeping  stirred  up 
into  the  realm  of  the  questioned  and  the  admittedly  improvable 
everything  that  threatens  to  settle  down  into  tradition.  We  need 
not  fear  chaos  so  long  as  we  are  guarded  on  one  side  by  ultra- 
conservative  legislators  and  on  the  other  by  careful,  far-sighted 
specialists  who  have  reverence  at  once  for  precedent  and  for  un- 
found  truth.  It  is  in  this  spirit  that  today  we  are  beginning  to 
look  upon  our  recent  constructions  and  to  reinterpret  them  in  the 
light  of  our  rapidly  growing  mass  of  experience  with  and  apprecia- 
tion of  childhood  both  normal  and  abnormal.  The  first  step 
towards  criticism  is  description.  Therefore  shall  we  briefly  de- 
scribe our  present  machinery  for  dealing  with  juvenile  delinquents. 


PART  III 

THE  APPARATUS  FOR  THE  TREATMENT  OF 
JUVENILE  DELINQUENTS 


CHAPTER  VI. 
THE  JUVENILE   COURT 

/.  Origin.  Logically  the  Juvenile  Court  is  an  offspring  of  the 
.Criminal  Court,  made  necessary  by  the  full  recognition  of  the  fact 
that  the  child  is  ordinarily  not  criminal  and  that  the  Criminal 
Court  taints  the  child  brought  into  it  with  the  character  given  it  by 
its  dealing  with  confirmed  criminals.  Historically  it  is  of  the  same 
origin.  Even  now  the  judge  of  the  Children's  Court  is  ordinarily 
simply  detailed  from  the  older  Court.  Though  the  way  had  long 
been  leading  up  to  it,  the  first  real  Juvenile  Court  was  established 
by  Sec.  3  of  the  Illinois  Juvenile  Court  Law,  in  force  July  1,  1901. 
Many  States  have  followed,  and  in  the  main  have  followed  closely. 

2.  The  Judge.  In  some  cases  there  is  but  one  judge  acting 
in  the  Juvenile  Court,  though  the  duties  of  that  Court  may  not  be 
sufficient  to  occupy  his  whole  time.  Whatever  cases  come  before 
this  Court,  either  for  the  first  time  or  as  « 'repeaters,"  he  passes 
upon,  being  always  in  the  peculiar  atmosphere  of  this  Court  and 
never  carrying  over  into  it  from  the  other  courts  anything  that  is 
foreign  to  it.  It  is  very  important  that  the  same  judge  should 
continue  the  hearing  of  a  case  in  which  he  has  been  interested 
before.  On  the  other  hand,  it  is  quite  common  that  the  judges  of 
the  circuit  court  take  turns  in  presiding  over  this  court.  In  the 
county  in  which  Indianapolis  is  situated  the  presiding  judge  is 
elected  like  any  state  officer.  In  Colorado,  jurisdiction  is  given 
solely  to  the  Judge  of  the  County  Court,  while  in  other  localities 
the  police  courts  and  justices'  courts  exercise  jurisdiction.  Thus 
there  is  great  variety  of  usage  in  the  matter  of  appointment. 

The  term  of  service  and  the  powers  of  the  Judge  are  subject"V 
also  to  local  custom.     But  the  relation  of  the  Judge  to  the  proba-      j 
tion   system    is    largely  a   matter  of   personal    preference,   except 
where  his  other  duties  absorb  his  attention  entirely.      It  is  in  some/ 
instances  possible  for  the  Judge  to  be  in  effect  the  chief  probation 
officer  of  his  Court,  taking  close,  personal  interest  in  the  children 
brought  before   him,    even   to   the  extent    of    following    them   up 
through  various  reforming  or  preventive  agencies.     Such  a  force 
is  Judge  Lindsey  of  Denver.      But  ordinarily  that  is  not  possible. 
However,  experience  seems  to  have  shown  that  in  general  the  men 
have  been  chosen  or  appointed  as  judges  who  have  most  sympathy 
with  childhood  and  therefore  are  most  likely  to  succeed.      In  fact 
the  Indiana  county  above  referred  to  has  restricted  the  eligibility  to 
the  position  so  that  only  a  man  of  forty  years  of  age  and  a  parent 
may  be  elected.  1 

i  Charities,  Jan.  7,  1905,  336. 

37 


38  TREATMENT    OF    JUVENILE    DELINQUENTS 

3.  The  Jury.     The  jury  is  a  remnant  of  the  adults'  court  in 
most  cases  dispensed  with  altogether,  in  a  few  instances  existing, 
but  almost  functionless.     The  reason  for  its  survival  is  the  desire 
to  accord  to  all  the  right  of  trial  by  jury,  on  the  part  of  those 
living  so  far  back  in  the  past  that  they  do  not  realize  that  there 
are  really  few  or  no  trials  in  the  Children's  Court.     But  the  ap- 
pendage is  harmless.     In  the  Chicago  Court  the  jury  is  ignored 
and  often  inust  inquire  to  learn  even  so  much  as  the  disposition  of 
the  case.     In  a  serious  offence  the  Judge  may  well  feel  reluctance 
about  passing  individual  judgment  against  a  criminal  child,   and 
the  jury  has  a  place,  but  the  sentiment  is  strongly  against  it,  as 
interfering  with  the  moral  and  educational  influence  of  the  Court, 
and  as  increasing  publicity. 

4.  Legal  Representative  for  the  Child.      In    some    Children's 
Courts  a  lawyer  is  provided  for  the  child,  perhaps  to  protect  him 
from  selfish  or  wicked  parents,  or  to  aid  the  judge  and  the  proba- 
tion officer  in  getting  at  the  whole  truth  of  the  case.     As  such  he 
performs  a  very  necessary  service,  yet  it  is  a  fair  question  whether 
the  same  service  could  not  quite  as  well  be  done  by  the  judge  or 
the  officer,  the  former  settling  legal  questions  and  the  latter  look- 
ing up  the  facts  of  the  case.     It  is  a  great  advantage  to  the  Court 
if  the  probation  officer  is  a  good  lawyer.     The  whole  atmosphere 
of  the  institution  seems   to  argue  against  such  a  representative 
simply  as  a  means  of  assuring  fairness  to  the  child.     Furthermore, 
a  lawyer  often  influences  the  child  to  deceive,  disturbs  the  decision 
of   the  judge   and   sometimes    sends    away  the    child  justified  in 
flagrant  or  doubtful  violation  of  the  law,  and  looking  upon  the 
Juvenile  Court  as  an  enemy  or  at  least  an  institution  lacking  in  the 
very  thing  it  means  to  assume — parental  interest  in  every  child. 
None  cares  to  deprive  any  member  of  the  State  of  the  right  to  a 
fair  hearing  and  protection  against  injustice,    but  the   Children's 
Court  is  an  educational  institution  seeking  both  to  deter  from  a 
path  full  of  dangers  and  to  point  the  way  to  clean  and  useful  man- 
hood and  womanhood,   and  it  is  bad  pedagogy  to  set  the  child 
against  it.     We  are  inclining  rapidly  to  this  view  of  things  even 
where  the  children  are  evidently  vicious  and  criminal.     Prevention 
is  very  reluctant  to  give  way  to  Correction  today. 

5.  Procedure.     In  what  does  the  dignity  of  the  Law  consist? 
'A  few  judges  still  insist  that  it  consists  in  its  ctothing  and  its 
bearing — a  dignity  that  is  often  very  impressive,  but  like  the  anal- 
ogous dignity  of  individual  gentlemen,  not  always  quick  and  un- 
bending and  sympathetic  enough  to  do  the  simplest  and  greatest 
services.     Is  there  not  vastly  more  dignified  and  worthy  human 
nature  shown  in  a  judge  who  will  take  a  child  aside,  screening  him 
from  publicity  and  consequent  harm,  stating  his  own  case  to  him, 
urging  thoughtfulness  and   industry,  deploring    bad  associations, 
planting  in  him  the  germ  of  self-help,  than  in  the  one  who,  because 
of   a  false  notion   of  his  office  or  pique  at  his  assignment  to   a 
Children's  Court,  insists  on  publishing  the  history  of  a  sensitive 


THE    JUVENILE    COURT  39 

child  to  an  audience  of  curious  listeners  through  the  established 
procedure?  Law  is  a  schoolmaster  to  a  child,  but  the  best  school- 
master is  not  the  legalist  of  that  type.  It  is  the  law  that  is  written 
on  the  heart,  revealing  a  heart-beat  at  every  letter,  not  the  hard, 
cold  law  of  statute  books  that  the  child  learns.  vThe  judge  as  man 
and  not  the  judge  as  judge  is  the  best  mediator  between  the  group 
standard  as  found  in  the  law  and  the  child.  When  we  shall  have 
fully  learned  that  the  law  is  made  for  the  child  and  not  the  child 
for  the  law  we  shall  easily  fall  into  a  way  of  conducting  proceed- 
ings that  will  turn  the  court-room  into  a  home  and  the  judge  into 
a  parent  to  every  unfortunate  child  brought  before  him.  The 
origin  of  the  Children's  Court  is  altogether  too  evident  in  its  con- 
duct. The  time  will  come  when  there  will  be  no  public  court- 
room for  the  child,  when  we  shall  deny  that  all  we  have  stripped 
from  the  police  court  to  make  way  for  the  child  in  the  new  court  is 
the  rogues'  gallery.  Dignity  will  be  denned  in  terms  of  effective- 
ness, not  show.  We  are  somewhat  content  to  move  slowly  in  this 
matter  beyond  a  certain  point  for  the  reason  that  this  is  an  in- 
cidental question,  the  solution  of  which  depends  upon  that  of 
another  and  vastly  more  fundamental  one — the  adjustment  made 
necessary  by  the  fact  that  machinery  employed  through  centuries 
upon  centuries  in  turning  out  the  criminal  grist  of  the  world  and 
furnished  its  motive  power  by  the  spirit  of  vengeance,  repression 
or  at  best  reformation,  is  now  set  to  work  upon  youthful,  unformed 
lives,  and  the  motive  power  changed  already,  so  far  as  it  touches 
the  child,  into  prevention  by  development. 

6.  Place  of  Detention.  By  law  some  of  the  States  forbid  the 
placing  of  children  under  a  certain  age  in  jail,  even  while  waiting 
for  a  hearing  in  the  Court.  Therefore  it  has  been  necessary  to 
provide  a  place  of  detention  for  such  of  the  children  as  cannot  be 
sent  to  a  home  or  kept  under  the  guardianship  of  some  interested 
person.  Some  cities  have  founded  a  home,  superintended  by  a 
man  and  woman  who  shall  exert  proper  influences  over  the  boys. 
In  some  cases  the  boys  are  kept  in  these  homes  for  a  considerable 
length  of  time,  before  or  even  after  their  appearance  before  the 
Court.  Perhaps  it  may  be  deemed  right  to  dismiss  the  case  with- 
out a  hearing  because  of  the  good  influence  of  this  institution.  In 
other  places  the  old  ideas  have  exerted  such  force  that  the  law  is 
met  by  the  provision  of  a  cell  (!!)  adjoining  the  court-room,  in 
which  the  child  is  locked  pending  his  hearing.  Of  course  this  is 
archaic.  The  detention  home  may  be  made  a  great  feature  in 
child-saving,  especially  among  the  homeless  waifs  whose  lot  will 
almost  inevitably  be  cast  in  the  great  cities,  who  have  the  taste  of 
the  city  and  can  not  be  "placed  out"  in  country  homes.  Coupled 
with  personal  interest  on  the  part  of  superintendents  and  matrons 
and  opening,  as  they  do,  very  evident  opportunities  to  settlement 
and  church  workers,  they  may  yet  develop  into  far  more  than  they 
were  intended  to  be.  Established  to  fulfil  a  temporary  function, 
they  reveal  a  field  not  unlike  that  of  the  "homes"  or  "lodges"  or 


40  TREATMENT    OF    JUVENILE    DELINQUENTS 

'  'lodging  houses"  for  homeless  men,  with  the  significant  distinc- 
tion that,  the  juvenile  population  being  less  nomadic,  there  is 
chance  for  permanent  betterment  where  the  other  institutions  are 
hardly  more  than  for  temporary  accommodation  to  most  of  their 
inmates. 

7.  Juvenile  Courts  and  Parents.  It  is  the  unanimous  opinion 
of  workers  for  children  that  delinquency  may  more  often  be  traced 
to  the  home  life  or  the  lack  of  it  than  to  any  other  cause  or  number 
of  causes.  As  remedial  measures  the  Court  may  remove  the  child 
from  his  environment  or,  leaving  him  there,  seek  to  improve  it  for 
him.  It 'often  happens  that  the  child's  delinquency  is  due  to  a 
train  of  circumstances  of  which  the  parents  know  nothing,  and  all 
that  is  necessary  is  to  call  the  attention  of  the  parents  to  the  life  of 
the  child.  '  Unfortunately  it  is  the  rule  that  not  simply  the  ingenu- 
ity of  the  child  in  concealing  his  activities;  and  his  associations 
from  his  parents  is  the  great  factor*,  but  rather  the  latters'  ignor- 
ance or  carelessness  or  wrong.  v  Therefore  the  attitude  of  trfe 
Court  towards  them  must  be  active;  it  must  encourage,  instruct, 
aid  parents  in  their  task.  Thus  far  the  Court  has  found  great 
difficulty  in  dealing  with  those  parents  who  resent  the  interference 
of  the  Law  in  their  domestic  life,  or  who  are  so  vicious  or  ignorant 
that  while  in  general  to  be  trusted  with  the  children  they  occasion- 
ally place  themselves  in  the  position  of  actually  contributing  to 
their  delinquency.  The  most  common  case  in  point,  perhaps,  is 
in  sending  the  child  to  a  saloon  to  buy  liquor  and  thus  putting 
him  in  touch  with  a  life  that  promises  much  danger  to  him.  Such 
an^act  is  'punishable  ordinarily,  yet  in  the  -legal  process  it  has  not 
been  shown  with  sufficient  clearness  that  this  is  not  only  an  act 
reprehensible,  but  is  such  because  of  its  consequences  to  the  child. 
The  parent  is  punished,  if  at  all,  in  one  court,  and  the  child  in 
another.  Could  a  parent  and  child  be  brought  before  the  same 
court  and  this  which  is  one  offence  be  dealt  with  as  such?  The 
situation  brought  forth  considerable  legal  sparring  for  points,  in 
which  common  sejise  won  in  spite  of  the  lack  of  precedent. 
Where  it  had  been  possible  in  all  the  Courts  to  bring  the  parents 
in  for  a  reprimand  only,  it  is  now  possible  in  at  least  one  to  make 
the  charge  against  the  parent  rather  than  against  the  child,  and  to 
administer  the  necessary  corrections  The  Colorado  "adult  delin- 
quent law"  of  1903  reads  as  follows: 

"Sec.  1.  In  all  cases  where  any  child  shall  be  a  delinquent 
child  or  a  juvenile  delinquent  person,  as  defined  by  the  statute  of 
this  state,  the  parent  or  parents,  legal  guardian  or  person  having 
custody  of  such  child,  or  any  other  person,  responsible  for  or  by 
any  act  encouraging,  causing  or  contributing  to  the  delinquency  of 
said  child  shall  be  guilty  of  a  misdemeanor,  and  upon  trial  and 
conviction  thereof  shall  be  fined  in  a  sum  not  to  exceed  one  thou- 
sand dollars  ($1000)  or  imprisoned  in  the  county  jail  for  a  period 
not  exceeding  one  (1)  year,  or  by  both  such  fine  and  imprison- 
ment. The  court  may  impose  conditions  upon  any  person  found 


THE    JUVENILE    COURT  41 

guilty  under  this  act,  and  so  long  as  such  person  shall  comply 
therewith  to  the  satisfaction  of  the  court  the  sentence  imposed 
may  be  suspended." 

No  other  feature  of  the  whole  S}'stem  is  so  much  an  innovation, 
or  so  much  an  evidence  of  the  strength  of  modern  sentiment.  It 
justifies  our  hope  that  soon  we  shall  be  able  in  a  hundred  respects 
to  construct  and  reconstruct  apparatus  for  dealing  with  the  juve- 
nile delinquent  entirely  on  the  basis  of  utility  and  common  sense 
and  independent  of  useless  traditions  either  in  principle  or  method. 

8.  The  Court  and. Private  Interest.  ' 'Every  reform,"  says 
Emerson  in  his  Essay  on  History,  "was  once  a  private  opinion, 
and  when  it  shall  be  private  opinion  again  it  will  solve  the  problem 
of  the  age."  It  is  too  ea,sy  to  get  into  the  beaten  path  of  things. 
It  is  easy  enough  to  get  out '•of  it  also,  but  to  only  the  -few  who 
hardly  find  content  in  the  beaten  path.  It  is  the  private  opinion, 
the  conviction  of  such  spirits  that  insistently  makes  its  way  into 
the  life  of 'others  in  the  group,  that  formulates  itself  in  Juvenile 
Courts,  and  new  laws  and  probation  systems.  The  legal  protes- 
'sion  at  the  beginning  set  ifself  against  the  reform  almost  by  neces- 
sity, as  did  the  police.  Both  are  accustomed  to  look  for  fault  and 
delinquency  and  crime;  the  child-saver  is  looking  for  everything 
else.  Individuals  with  ttye  teaching  and  the  saving  spirit  wherever 
they  happened  to  be,  espoused  this  cause.  -Clubs  with  energy  and 
means  to  expend,  judges  who  saw  the  error  of  fitting  the  child  into 
adults'  clothing,  charities  associations  and  children's  societies  of 
all  sorts  added  their  private  conviction,  bore  the  brunt  of  the" 
reform  and  the  construction  and  thfe  expense  until  such  time^as 
private  opinion  should  be  "private  opinion  again"  and  everywhere. 
Such  is  the  general  history  of  the  movement.  Balls,  bazaars, 
fairs,  subscriptions,  petitions,  publication — all  sorts  qf  influence 
h,ave  been  brought  to  bear  wherever  necessary  in  order  to  legalize 
private  opinion  into  public  institution.  Even  now  the  State  pro- 
claims its  only  partial  conversion  in  failing  to  provide  adequate 
means  for  the  management  of  the  system.  Probation  officers  mus't 
yet  be  privately  paid,  the  expense  of  caring  for  children  in  many 
cases  is  likewise  neglected,  surely,  in  view  of  ceaseless  waste  and 
misexpenditure  of  public  moneys,  not  for  lack  of  funds,  bnt  for 
lack  of  inclination. 

Yet  we  can  conceive  of  nothing  so  fortunate  as  all  this.  It  is 
the  cause  that  attracts  to  itself  strong  advocates  who  are  witling  to 
crusade  for  it,  who  find  opposition  and  in  meeting  it  find  their 
cause  growing  upon  them  and  giving  them  a  great  message,  that 
finally  is  founded  substantially.  The  judges  and  the  lawyers  who 
opposed  once  are  the  strongest  advocates  for  the  very  reason  that 
they  know  the  value  of  the  idea  that  conquered  them.  And  it  is 
of  inestimable  worth  to  have  had  the  advertising  of  this  form  of 
child  saving  among  so  many  individuals.  The  Juvenile  Court 
lobby  has  extended  far  beyond  legislative  halls,  and  the  lobbyists 
have  been  actuated  by  the  consciousness  of  right  and  the  call  of 


42  TREATMENT    OF    JUVENILE    DELINQUENTS 

long-suffering  childhood.  When,  even  with  such  rapid  develop- 
ment, we  grow  impatient  that  juvenile  life  is  made  to  wait  upon  red 
tape  and  undue  conservatism,  we  may  be  quieted  with  the  thought 
that  there  is  nothing  to  fear  so  much  as  a  movement  getting 
beyond  its  average  observers,  or  becoming  crystallized  into  a  form 
to  be  laid  aside  because  men  have  not  seen  it  in  the  process  of 
crystallization.  Or  when  we  are  tempted  to  think  of  the  unforgiv- 
able crime  of  not  having  distinguished  between  the  juvenile  delin- 
quent and  the  adult  criminal  through  the  centuries,  it  is  well  to 
reflect  that  it  is  the  appreciation  of  the  enormity  of  this  very 
offence  that  has  made  this  institution  one  of  the  most  popular  and 
significant  in  recent  history,  and  in  a  comparatively  brief  periodv 


CHAPTER  VII. 
THE  PROBATION  SYSTEM 

/.  Origin.  The  probation  system  is  a  Topsy-like  creation;  it 
''just  grew."  How  futile  for  this  State  or  that  to  claim  precedence 
in  this  matter,  identifying  legislative  approach  to  it  with  origins! 
When  we  find  the  first  administrator  of  the  law  whose  heart  and 
decision  registered  a  protest  against  clamping  the  criminal  pro- 
cedure over  juvenile  life,  holding  it  rigidly  in  a  mold  too  small  and 
altogether  unfitting,  we  shall  have  found  the  source  of  this  mighty 
flowing.  Perhaps  that  protest  and  like  protests  resulted  only  in 
the  dismissal  of  the  cases  in  want  of  alternative  possibility,  but  tha 
legal  mind  is  too  keen  and  merciful  and  impartial  notwithstanding 
its  weaknesses  to  overlook  infringement  of  law.  Revolt  is  never 
completed  until  there  is  revolt  to  something  as  well  as  away  from 
something.  The  judge  who  revolted  against  sending  a  child  to 
company  with  criminals  in  jail,  in  that  very  act  proved  the  exist- 
ence of  the  spirit  which  made  him  turn  about  and  help  to  provide 
for  the  child's  welfare  by  some  means  not  yet  legal.  Ha  went 
beyond  the  law  he  was  sworn  to  administer  in  releasing  the  child 
who  might  be  technically  guilty  of  wrong,  and  he  went  outside  the 
pale  of  things  legal  for  a  remedy.  Either  he  himself,  not  as  judge 
but  as  private  citizen,  exercised  the  rights  always  accorded  to 
greatheartedness,  and  entered  upon  a  campaign  of  saving  the  child 
to  wholeness  of  life,  or  he  co-operated  with  those  who  as  private 
citizens  or  institutions  were  committed  to  such  service.  "Every 
reform  was  once  private  opinion."  Yes,  and  every  reformer  a 
prophet — prophet  of  gradual  acceptance  of  protests  and  final  for- 
mulation and  application  of  something  better.  The  early  principle 
of  discernment  or  lack  of  discernment,  responsibility  or  lack  of 
responsibility  on  the  part  of  the  child  in  his  act,  seen  in  French 
and  German  codes  was  prophetic  of  probation.  Likewise  were 
the  principle  of  the  suspended  sentence  during  satisfactory  be- 
havior, the  indeterminate  sentence,  separate  confinement  of  juve- 
niles and  adults  in  prisons  and  the  same  thing  extended  in  the 
establishment  of  reformatories.  Historically,  probation  has  come 
to  us  not  as  one  of  the  series  of  devices  but  as  a  principle;  not  the 
isolation  of  the  child  from  the  society  he  has  offended  or  which 
has  harmed  him,  but  the  application  of  good  to  him  through  the 
direct  medium  of  lives  sympathetic  to  those  in  the  formative 
period.  If  we  may  prophesy,  strictly  on  the  basis  of  the  history  of 
child  status  and  child  treatment  and  with  a  view  to  the  actual 
turning  of  the  attention  of  the  race  back  upon  its  children,  we 

43 


44  TREATMENT    OF    JUVENILE    DELINQUENTS 

may  allow  all  sorts  of  variation  in  method,  unlimited  extension  in 
application,  and  yet  insist  that  in  principle,  whether  we  name  it 
probation  or  patronage  or  education  or  religion,  we  cannot  ad- 
vance— -we  can  be  no  more  than  parental  in  our  attitude  at  best. 
And  that  is  enough.  When  we  get  this  sweep  of  things,  how  un- 
important it  seems  whether  it  was  Judge  Sanity  of  the  City  of 
Puremont  of  the  Commonwealth  of  Massachusetts  or  Judge  Kindly 
of  Spotless  Town  who  first  informally  applied  the  probation  idea 
to  some  youngster  who  was  fortunate  enough  to  "get  caught 
swipin'  tilings!" 

In  the  United  States  probation  was  operative  in  some  form  and 
to  some  extent  in  a  number  of  the  older  communities  before  Juve- 
nile Court  laws  made  specific  provision  for  it  on  a  much  more 
extensive  plan.  New  York  paroled  children  to  individuals  and  to 
;  the  New  York  Society  for  the  Prevention  of  Cruelty  to  Children 
for  twenty  years  prior  to  our  present  laws.  Statutory  provision 
for  the  step  was  made  in  Massachusetts  as  early  as  1878  and  1880, 
and  at  least  as  early  as  that  Michigan  covered  practically  the  same 
ground  through  its  State  Board  of  Charities  and  Correction.  1 
Illinois  and  Indiana  were  both  groping  for  light  and  relief,  experi- 
menting and  preparing  the  way  for  advanced  legislation. 

But  "probation"  has  within  a  half  dozen  years  taken  on  a  very 
definite  character.  The  impossibility  of  dealing  with  the  child 
under  the  criminal  law  became  so  patent  to  so  many  people,  and 
especially  the  disposition  of  the  cases  which  actually  need  some 
oversight  became  so  problematical  that  some  departure  was  in- 
evitable. It  was  wrong  in  principle  to  simply  turn  loose  the  child 
who  had  offended.  There  were  no  institutions  entirely  answering 
the  purpose,  and  the  treatment  in  those  institutions  which  could 
receive  the  small  minority  of  the  children  tried  was  very  expensive 
and  not  adequate  to  any  more  than  the  small  minority.  The 
whole  trend  of  the  day  was  against  "institutions."  How  would 
men  do?  The  very  thing  that  not  only  the  Courts  and  the  Boards 
of  Charity  and  the  Child  Saving  Societies  had  been  seeking  more 
or  less  consciously,  but  that  the  spirit  of  the  age  demanded!  The 
Judge  could  not  follow  the  child  as  he  left  the  Court,  not  guilty  in 
a  measure  that  would  justify  incarceration  in  jail  or  detention  in  a 
reformatory,  but  not  so  guiltless  or  well  environed  but  that  his 
departure,  unguarded  and  technically  vindicated,  left  a  burden  on 
the  mind  of  the  Judge.  What  he  could  and  did  do  is  very  aptly 
expressed  by  Dr.  C.  R.  Henderson,  always  in  the  forefront  in  the 
study  of  the  sociology  of  the  delinquent  group:  "An  old  proverb 
ran  thus:  'God  could  not  be  everywhere,  so  he  made  mothers.' 
The  judge  cannot  be  everywhere,  so  he  must  have  probation 
officers." 

The  child  is  "paroled,"  released  on  probation  usually  for  an 
indefinite  period,  with  the  understanding  that  good  conduct  will 
end  in  his  release  from  probation  and  the  oversight  of  the  Court, 

i  Charities,  Jan.  7,  1905,  p.  331. 


THE    PROBATION    SYSTEM  45 

and  that  failure  to  behave  properly  will  make  him  liable  to  return 
to  the  Court  and  to  final  disposition  of  his  case  just  as  if  he  had 
not  been  paroled. 

2.  Probation  Officers.  The  probation  officer,  of  supreme 
worth  in  the  system  of  child-saving,  has  had  to  justify  himself. 
At  first  there  was  seldom  a  way  made  for  his  appointment,  and  the 
public  purse-strings  are  still  closely  drawn  against  him.  Even 
Illinois,  leader  in  many  respects  in  the  affairs  of  juvenile  delin- 
quents, does  not  yet  pay  him  as  such.  The  mayor  of  Chicago 
details  policemen  to  this  duty  and  the  city  pays  them  as  police- 
men. There  are  also  volunteers  and  still  others  paid  by  philan- 
thropic organizations.  In  a  few  States  his  appointment  is  manda- 
tory and  in  a  few  he  is  paid  from  the  public  treasury.  In  more 
States  no  provision  whatever  is  made  for  his  appointment.  Others 
leave  it  optional.  Office  is  held  ordinarily  during  the  pleasure  of 
the  appointing  body.  Often  the  Court  appoints,  sometimes  the 
governor  does  so.  In  Colorado  the  appointee  must  be  approved 
by  the  State  Board  of  Charities  and  Corrections.  2  All  this  un- 
certainty indicates  clearly  that  we  are  yet  in  the  experimental 
stage  in  this  matter,  at  least  in  the  public  mind.  It  is  true  that 
many  of  the  best  friends  of  the  system  have  opposed  payment  of 
officers  from  the  public  funds  on  the  ground  that  the  qualities 
necessary  in  the  officers  are  rarely  found  in  politically  dependent 
men.  The  same  argument  would  apply  with  identical  strength 
against  the  employment  of  policemen  as  probation  officers.  There 
is  basis  for  this  argument  certainly  in  our  American  public  life, 
but  on  the  other  hand  this  particular  movement  has  not  only 
succeeded  in  keeping  itself  from  the  hands  of  the  spoilsmen,  but  it 
has  been  in  actual  development  and  will  be  in  the  nature  of  the 
case  close  to  the  healthy  censorship  of  individual  and  institutional 
interest.  Therefore,  while  we  may  be  sceptical  about  the  wisdom 
of  optimistically  trusting  public  officials  even  in  this  high  task, 
can  we  afford  not  to  encourage  by  decent  remuneration  the  many 
who  voluntarily  serve  such  a  cause?  They  are  enough  so  that 
among  them  we  may  surely  find  splendidly  equipped  probation 
officers.  When  we  have  once  confessed  to  ourselves  that  the  only 
real  problem  is  to  keep  the  political  buzzards  away  from  us,  we 
shall  find  a  way  to  do  it.  If  we  cannot  check  them  in  the  Colo- 
rado plan  of  requiring  the  approval  of  the  charities  organization  to 
the  appointment,  surely  with  the  backing  there  is  in  this  popular 
enterprise  we  may  safeguard  ourselves  in  some  other  way.  At 
least  let  us  not  be  guilty  of  listening  to  those  who  insist  that  we 
cannot  afford  to  pay  probation  officers.  It  does  not  require  an 
expert  accountant,  as  Judge  Lindsey  and  others  have  shown  us  in 
their  reports  of  the  enormous  saving  of  the  Court  to  the  State,  to 
convince  us  that  we  can  afford  from  that  source  alone  to  pay  more 
officers  than  we  need  to  perform  the  present  functions  of  the  office. 

2  "Charities,"  Jan.  7,  1905,  gives  a  complete  list  to  date  of  appointing  power,  terms  of 
appointment,  compensation,  term  of  service  and  scope  of  powers  according  to  States. 


46  TREATMENT    OF    JUVENILE    DELINQUENTS 

3.  The  School  and  Probation.      The    great    majority    of    the 
States  which  have  probation  laws  are  Northern  States  which  have 
compulsory  education  laws,  making  it  necessary  for  the  children  to 
attend  school  up  to  about  the  age  which  is  the  higher  limit  of 
Juvenile   Court  jurisdiction.     This  fact   alone  suggests   the  close 
relation  between  the  Juvenile  Court  and  the  School. 

During  the  year  ending  April  30,  1904,  there  were  heard  in  the 
Juvenile  Court  of  St.  Louis  815  cases  of  delinquents.  Missouri 
has  no  compulsory  education  law.  Of  these  815  only  174  were 
attending  school!  Of  the  remaining  641  only  222  were  at  work. 
The  problem  of  St.  Louis  in  its  child-saving  is  with  the  419,  more 
than  50  per  cent,  who  were  neither  at  school  nor  at  work.  Rather 
might  it  not  be  said  that  if  the  laws  which  make  such  conditions 
impossible  elsewhere  were  in  force  there,  probably  about  50  per 
cent,  of  the  problem  would  disappear.  It  may  easily  be  seen  that 
the  relation  of  the  Court  and  the  schools  cannot  be  very  close  in 
St.  Louis.  During  approximately  the  same  year,  that  ending 
December  31,  1903,  Chicago  had  in  its  Juvenile  Court  1817  delin- 
quent cases,  the  great  majority  14  years  of  age  or  under  and  the 
greater  part  of  all  of  them  coming  under  the  Illinois  compulsory 
education  law.  589  of  these  were  paroled  to  probation  officers, 
whose  primary  source  of  information  concerning  those  in  school 
were  the  teacher  and  the  school  record.  The  officers  visited  the 
schools  and  consulted  with  the  teachers,  or  received  from  time  to 
time  reports  and  records  from  them — information  which  was  of 
course  invaluable  both  to  the  officers  and  the  Judge,  if  the  case 
came  to  his  attention  again.  It  is  to  be  hoped  that  usually  the 
teacher  was  doubly  interested  in  the  cause  of  the  children  on  the 
appearance  of  the  danger  signal  given  by  the  Court.  Together 
they  may  have  a  double  reading  of  the  barometer  which  responds 
to  every  indication  of  the  threatening  cloud  of  crime. 

4.  The  Church  and  Probation.     Judge  Lindsey's  opinion  of 
the  matter  is  worth  quoting.     He  writes  from  Denver: 

"The  churches  have  given  us  their  moral  support,  which  is  of 
great  importance  and  has  been  encouraging  and  helpful  to  those 
who  have  done  the  work.  As  for  direct  assistance  or  any  practical 
co-operation  with  the  churches  there  has  been  practically  none. 
At  the  present  time  some  of  the  churches  are  taking  hold  of  the 
club  work  and  opening  their  churches  to  the  boys.  The  churches 
and  pastors  have  shown  the  kindest  feeling  and  disposition  and 
are  anxious  to  help  the  court,  but  the  difficulty  has  been  to  devise 
any  system  to  harness  this  willing  material  in  such  a  way  as  to 
receive  from  it  practical  advantage.  This  is  something  to  be 
worked  out  and  we  are  trying  to  do  it  through  the  Juvenile 
Improvement  Association.  It  has  been  rather  a  lack  of  method 
than  any  lack  of  disposition  on  the  part  of  the  churches  that  ha? 
prevented  us  from  crediting  the  churches  with  any  more  direct 
work  in  our  behalf.  The  church  women  rallied  to  our  support  at 
election  time." 


THE    PROBATION.  SYSTEM  47 

"Willing  material"  is  a  phrase  which,  when  used  to  accompany 
a  confession  of  this  sort,  stands  as  a  challenge.  It  is  hardly  to  be 
expected  of  the  church  that  it  shall  work  out  the  problems  of  all 
the  institutions  to  which  it  is  willing  to  furnish  "material."  But 
it  is  expected  to  be  in  working,  practical  sympathy  with  such 
great,  thoroughly  Christian  movements  as  this. 

5.  The  Home  and  Probation.      The    probation   officer   has    a 
two-fold  character.     He  is  a  representative  of  the  law,  the  great 

power  of  the  State,  yet  he  is  a  representative  of  it  in  its  parental 
function.  If  indeed  he  must  not  be  all  things  to  all  men  (and 
women  too  in  this  case!)  he  must  surely  be  these  two  things  in  his 
relation  to  the  family.  More  frequently  than  not  the  family  has 
contributed  to  the  child's  delinquency  because  of  some  laxity  of 
parental  control,  some  misfortune  in  its  organization  or  some 
looseness  of  living.  Just  what  the  situation  is  the  probation  officer 
must  in  some  manner  determine  and  his  procedure  must  be  framed 
with  that  in  view.  In  the  home  he  must  be  proof  against  deceit, 
gentle  with  weakness  and  firm  with  evil.  He  is  clothed  with 
authority,  for  is  he  not  the  Judge  stepped  down  from  his  bench 
and  into  the  life  of  those  whom  he  serves?  When  one  notes  in 
the  hearing  of  the  child  before  the  Court  how  final  is  the  word  of 
the  officer  to  the  Judge,  one  feels  how  important  is  the  office.  He 
gets  closer  than  any  other  to  the  whole  problem  of  the  child's 
salvation,  and  if  he  advises  that  the  parents  are  unfit  to  retain 
custody  of  the  child,  usually  the  child  is  taken  from  them.  If,  on 
the  other  hand,  he  with  quick  intuition  assigns  the  delinquency  to 
some  condition  easily  remedied  here  in  the  home  with  parents, 
child,  officer  and  Judge  co-operating,  he  has  inaugurated  a  change 
that  no  other  agency  could  so  wisely  direct.  Visits  to  the  home, 
talks  with  the  father  and  mother  and  with  the  child,  sympathy, 
counsel  of  patience  and  love  in  the  matter  of  child-training — with 
these  means  he  may  make  himself  a  respected  brother  and  parent 
to  many  a  family  where  nothing  else  is  needed.  It  is  the  proba- 
tion officer's  first  business  to  know  the  home  life  of  the  children  in 
whom  he  is  interested.  In  addition  to  the  direct  and  invaluable 
service  rendered  through  this  relation,  there  is  an  absolutely  in- 
estimable advantage  in  having  thus  added  to  our  great  force  of 
social  workers  a  body  of  men  and  women  who  in  the  years  just 
ahead  of  us  can  out  of  their  vast  experience  lay  down  foundation 
principles  and  upon  them  build  up  a  structure  for  child-saving 
which  shall  cause  us  to  wonder  at  our  former  lack  of  understand- 
ing. The  half  of  the  story  of  juvenile  delinquency  could  never  be 
told  us  without  the  probation  officer  and  his  studies  of  the  home. 
Those  States  where  only  sufficient  officers  are  provided  to  do  the 
accounting  of  the  enterprise  or  receive  reports  once  a  week  from 
the  children  in  their  offices,  never  or  seldom  visiting  the  home, 
have  no  probation  system. 

6.  Some  Methods  in  the  Probation  System.     We  glorify   the 
man  in  time  of  battle  between  two  great  men-of-war,  down  in  the 


48  TREATMENT    OF    JUVENILE    DELINQUENTS 

deep  lungs  of  his  ship,  sweltering,  frantically  working  that  she 
may  breathe  and  live,  knowing  that  at  any  moment  she  may  be 
blown  into  pieces  or  sunk  with  her  men  strangling  like  rats  in  a 
trap.  But  what  do  we  know  about  it?  A  magazine  has  published 
pictures  of  the  engines  and  the  hold  and  the  men,  and  there  are 
statistics  about  the  amount  of  coal  consumed.  We  have  been  on 
board  such  a  vessel.  That,  with  the  picture  which  our  imagina- 
tion makes  of  it  is  about  all  we  can  know  of  it.  We  can  get 
about  as  near  as  that  to  the  working  of  the  probation  system. 
Numbers,  records,  pictures,  stories,  comedy,  tragedy,  childhood, 
crime  and  success!  And  yet  there  goes  with  it  all  the  final  at- 
traction to  myriad  lives — it  is  child-saving!  If  we  may  get  closer 
to  it  we  are  willing  to  take  many  details  and  facts  at  second  hand. 

For  the  apprehension,  the  hearing  and  the  disposition  of  the 
case  of  the  child,  there  are  various  blanks  to  be  filled  out  contain- 
ing the  necessary  information  in  regular  form,  f  But  most  interest- 
ing of  all  is  the  history  sheet  or  memorandum  made  out  by  the 
probation  officers  for  the  use  of  the  Court,  containing  information 
bearing  upon  the  child's  parentage,  his  health,  his  economic,  his 
educational  and  his  moral  interests,  the  domestic  life,  and  all  con- 
ditions which  may  enter  into  full  consideration  of  the  case.  This 
history  sheet  is  of  the  greatest  value  not  only  to  those  who  deal 
immediately  with  the  child,  but  to  those  who  have  an  interest  in 
the  general  problems  of  juvenile  delinquency.  Unfortunately, 
they  have  not  been  made  up  with  this  larger  purpose  in  view  and 
they  have  been  as  a  rule  badly  kept.  More  and  more  we  shall  go 
to  such  first  hand  statistics  for  our  generalizations.  The  ideal 
history  sheet  is  yet  to  come. 

It  not  infrequently  develops  that  delinquency  would  have  been 
prevented  by  employment.  Then  the  probation  officer's  duty  is 
clear:  he  should  insist  that  the  child  be  employed,  and  if  no  one 
else  is  interested  he  should  make  it  a  part  of  his  service  to  find 
employment.  The  Denver  Juvenile  Court  is  really  an  extensive 
employment  agency.  Many  of  the  boys  are  employed  in  the  beet 
fields  in  the  beet  season,  and  incidentally  work  is  found  for  many 
others,  there  as  elsewhere,  nearly  always  with  splendid  results. 
The  moral  support  afforded  by  the  knowledge  that  someone  is 
watching  and  encouraging  is  sufficient  to  keep  many  a  lad  at 
work  who  otherwise  would  prefer  to  do  almost  anything  else. 
Judge  Lindsey  of  the  Juvenile  Court  of  Denver  has  alluded  to  the 
juvenile  law  proper,  the  compulsory  education  law  and  the  child 
labor  law  as  a  "trinity  of  laws"  in  close  co-operation.  Really  the 
Juvenile  Court  through  its  probation  system  and  its  close  relation 
with  the  schools  and  child-saving  institutions,  is  a  great  factor  in 
protecting  the  children  from  abuse  in  the  industrial  system,  where 
abuse  seems  so  easy.  As  a  matter  of  fact  there  is  little  that  serves 
to  limit  the  powers  and  possibilities  of  the  probation  system  ex- 
cept the  lack  of  efficient  men  to  play  the  parent  to  the  child. 
There  is  no  limit  to  the  parent's  interest  and  his  ability  to  guide 


THE    PROBATION    SYSTEM  49 

the  child,  and  this  system  is  deeply  and  fundamentally  parental. 

There  is  a  field  of  effort  already  entered  by  probation  officers 
which  seems  to  offer  place  for  the  many  spirits  inclined  to  help 
unfortunate  children,  applying  energy  and  talent  which  has  here- 
tofore done  a  like  service  in  the  settlement  and  in  the  church  and 
the  mission,  namely  the  field  of  club  life.  The  boy  belongs  to  a 
"gang"  about  as  naturally  as  he  belongs  to  the  family,  and  at  a 
certain  age  is  more  enthusiastic  about  the  former  than  the  latter. 
Boys  are  brought  into  the  Court  in  gangs  and  for  faults  which  are 
traceable  directly  to  the  fact  of  such  association.  A  few  wise 
officers  have  turned  the  gang  spirit  to  good  use.  Judge  Lindsey 
has  succeeded  so  well  that  with  the  aid  of  his  crowds  of  boys  he 
has  been  enabled  to  stop  lawlessness  that  the  police  could  not 
touch,  has  used  the  boys  to  detect  crime  and  delinquency,  and  has 
had  more  than  200  voluntary  delinquents,  boys  who  because  of 
their  faith  in  his  being  "square  wit'  de  kids,"  have  confessed  their 
faults  at  the  suggestion  of  other  boys  in  the  gangs,  and  been 
started  on  the  right  path.  He  writes  of  the  Juvenile  Improvement 
Association,  a  voluntary  auxiliary  of  the  Juvenile  Court:  3 

"This  association  is  also  *  *  *  engineering  three  or  four  boys' 
clubs  in  those  parts  of  the  city  where  they  are  most  needed.  In 
such  neighborhoods  it  has  supplied  baseball  suits  for  baseball 
nines,  and  exacts  in  return  the  promise  of  the  boys  in  that  neigh- 
borhood to  enforce  the  law.  Some  of  this  work  is  largely  experi- 
mental, but  so  far  gives  promise  of  eminent  justification." 

Mr.  McManaman,  chief  probation  officer  of  the  Chicago  Court, 
has  established  a  club  of  homeless  boys  taken  from  the  John 
Worthy  School  or  from  the  Court,  furnishing  board  at  a  nominal 
cost  and  keeping  an  eye  on  the  savings  of  the  boys,  on  their  health 
and  their  work.  He  has  little  trouble  in  finding  employment  for 
his  boys,  frequently  numbering  thirty.  This  feature  is  capable  of 
almost  limitless  extension  provided  the  leaders  can  be  found. 

Furthermore,  the  models  are  already  in  existence  for  classes, 
excursions,  etc.,  which  will  work  quite  as  well  among  the  paroled 
delinquents  as  among  any  others.  There  comes  a  place  always 
where  a  judge  or  a  probation  officer  is  at  the  limit  of  his  possibil- 
ities for  the  simple  reason  that  he  is  but  one  and  there  are  many  in 
his  flock,  restless,  full  of  life  and  energy  and  always  looking  for 
new  occupation.  It  is  quite  natural  that  he  should  have  looked 
upon  these  established  methods  as  his  own;  they  were  born  out  of 
conditions  similar  to  those  he  faces.  But  he  cannot  be  omni- 
present. Perhaps  as  the  judge  creates  the  probation  officer  be- 
cause he  cannot  be  everywhere,  this  officer  must  ally  with  himself 
the  large  forces  of  "willing  material"  about  him.  The  problem 
truly  is  the  working  out  of  methods  which  shall  harness  together 
the  men  and  women  of  social  spirit.  We  may  find  ourselves  at 
the  end  of  our  fine  spurt  in  dealing  with  juvenile  delinquents,  and 
unable  to  proceed  until  our  forces  are  thus  augmented. 

3  "T/ie  Problem  of  the  Children,"  p.  133,  1904. 


CHAPTER  VIII. 
CHILD-SAVING  INSTITUTIONS  AND  THE  JUVENILE  COURT 

The  Juvenile  Court  found  waiting  for  it  a  large  heritage  in  the 
way  of  institutions  committed  to  child-saving,  institutions  char- 
itable, religious  (denominational),  industrial,  reformatory,  truant; 
institutions  established  by  individuals,  by  civic  bodies,  by  societies, 
each  ordinarily  for  some  small  class  of  children,  but  all  having 
essentially  the  same  aim,  the  rescue  of  juveniles  from  peril  and 
misfortune.  The  larger  number  of  these  are  private  in  control, 
but  in  recent  years  many  State  institutions  have  sprung  up  as  a 
concession  to  the  growing  sentiment  which  forbade  the  assignment 
of  juveniles  to  jails  or  even  to  reformatories.  It  was  a  recognition, 
too,  of  the  fact  that  a  great  number  of  delinquents  were  such 
because  they  had  been  deprived  of  fitting  parental  oversight. 
Such  institutions  were  founded  in  the  hope  that  through  them  this 
want  might  be  filled.  But  as  a  rule  they  are  not  at  all  adequate. 

For  example,  during  the  year  1903,  of  the  1586  delinquent  boys 
of  the  Chicago  Juvenile  Court,  717  or  nearly  half  of  them  were 
sent  to  the  John  Worthy  School.  But  this  is  a  "part  of  the  city 
bridewell;"  it  is  a  prison,  as  Judge  Tuthill  of  the  Juvenile  Court 
has  said.  It  is  too  crowded  to  permit  sufficiently  long  residence 
in  each  case  to  accomplish  what  it  dught,  which  is  a  very  common 
complaint.  The  "St.  Charles  Home  for  Boys"  which  is  being 
erected  on  about  1000  acres  of  the  finest  farm  land  in  Illinois,  with 
an  initial  appropriation  from  the  State  of  $325,000  for  buildings 
and  $50,000  for  maintenance,  will  help  greatly.  Private  benevo- 
lence furnished  the  first  $100,000. 

St.  Louis  is  calling  for  an  Industrial  School.  At  present  she  is 
sending  children  to  an  institution  organized  as  "a  penal  institu- 
tion, reformatory  and  asylum  *  *  *  which  achieves  none  of  its 
objects  satisfactorily."  1  State  Industrial  Schools  are  depended 
upon  more  than  any  other  institutions.  It  is  difficult  to  make 
these  institutions  seem  parental  in  any  real  sense;  parents  are  not 
institutions.  This  is  the  real  problem  of  child-saving.  Children 
need  parents,  and  the  system  that  furnishes  the  best  substitute 
will  be  the  -most  successful  system.  But  until  we  get  more  proba- 
tion officers  helping  the  child  while  he  is  yet  permitted  to  live  at 
home,  we  shall  have  to  depend  on  institutions.  During  the  year 
(1903)  when  Chicago  sent  717  boys  to  the  John  Worthy  School, 
224  were  sent  to  the  Parental  School  and  only  564  were  paroled  to 
officers.  2  The  Buffalo  Court  has  paroled  over  50  per  cent,  of  its 
children  to  probation  officers.  3 

1  Children's  Courts  in  the  United  States,  Barrows,  p.  164. 

2  Juvenile  Court  Record,  Jan.  1904,  p.  5. 

3  Children's  Courts  in  the  United  States,  Barrows,  p.  14,  1904, 

50 


NIVERSITY   I 

as^X 

CHILD-SAVING    INSTITUTIONS    AND    THE  "JUVENILE    COURT  51 

We  are  in  that  state  of  affairs  in  regard  to  our  child-saving 
institutions  inevitable  to  our  complete  disorganization  of  method. 
Our  efforts  have  been  partial,  spasmodic,  isolated;  there  has  been 
,  no  unifying  theory  nor  practice.  No  plan  has  been  devised  which 
•covers  the  whole  field,  bringing  to  the  attention  of  some  single 
body  all  the  delinquents  and  all  the  dependents.  To  such  a  state 
we  are  looking,  and  when  we  reach  it  we  shall  easily  and  natur- 
ally fall  into  consistency  with  regard  to  our  institutions.  We  shalj 
need  them  less  because  we  are  leaving  behind  the  institutional  idea 
as  too  impersonal,  but  the  institutions  which  sulvive  will  not  need- 
lessly duplicate  in  either  function  nor  expense,  and  will  be  closely 
related  both  by  whatever  theory  underlies  our  treatment  of  juvenile 
delinquents  and  by  whatever  method  is  central  to  the  whole  system. 


PART  IV 

CRITIQUE  OF  PRINCIPLES,  MEANS  AND  METHODS 

SUMMARY 


CHAPTER  IX. 
PRINCIPLES  DRAWN  FROM  EXPERIENCE 

Thus,  always  feeling  the  imperative  of  protest  against  anti- 
quated and  pitifully  inadequate  methods  and  principles,  impelled 
by  really  scientific  studies  of  child  nature,  and  the  effects  of  city 
life  and  environment  upon  it,  following  close  upon  every  sugges- 
tion of  institutions  that  constituted  the  vanguard,  passing  all  too 
gradually  from  the  ground  of  vengeance  as  a  means  of  protection 
and  control  to  that  of  punishment,  then  pinning  its  faith  upon 
reformation,  only  to  finally  recognize  that  prevention  would  avoid 
much  of  the  problem  altogether,  ever  calling  more  earnestly  for  the 
mediation  of  all  its  methods  and  principles  through  intelligent  and 
consecrated  men  and  women,  there  has  slowly  emerged  and  shaped 
itself  a  more  or  less  elaborate,  disorganized  apparatus  for  the 
study  and  treatment  of  juvenile  delinquents.  Its  friends  are  con- 
scious of  not  having  apprehended;  they  are  in  the  * 'press  forward" 
stage.  Private  initiative  is  in  the  lead.  The  legal  mind  has  been 
softened  and  enthused  as  the  standard  of  education  for  the  legal 
profession  has  advanced.  Concessions  without  number  have  been 
made  in  procedure  and  principle  to  delinquent  childhood.  Agita- 
tion has  made  many  friends  and  advocates.  Spoilsmen  have  been 
steadily  and  persistently  invited  to  forget  that  this  might  be  a  field 
for  politics.  Best  of  all  the  State  has  been  invoked  in  its  parental 
function.  To  be  sure  it  has  regularly  betrayed  its  awkwardness 
and  inexperience,  as  a  parent,  but  with  thousands  of  delinquents 
born  every  year  into  the  courts  and  other  institutions  there  is  little 
fear  that  the  State,  now  fully  conscious  of  its  parenthood,  will  not 
learn  and  succeed. 

In  any  fair  description  of  the  machinery  of  the  modern  juvenile 
delinquent  system,  especially  if  it  were  written  as  a  comparative 
study  having  in  mind  the  stages  of  development,  one  might  read 
between  the  lines  and  find  that  it  is  constructed  to  do  a  different 
task  and  furnished  with  different  motive  power  than  the  machinery 
formerly  given  the  task  of  grinding  out  the  criminal  grist.  But  it 
has  been  as  impossible  not  to  follow  more  or  less  closely  the  old 
mechanism  as  it  would  be  not  to  find  much  of  the  printing  press 
of  1885  incorporated  into  the  press  of  1905.  An  entirely  new 
development  of  either  could  not  be  expected.  Yet  we  have  been 
unduly  conservative,  have  held  too  close  to  the  criminal  procedure 
throughout.  At  many  points  we  understand  child  life  better  than 
ever  before,  and  our  understanding  is  not  half  reflected  in  our 
apparatus.  The  school,  the  church,  the  home  have  learned  much 

55 


56  '         TREATMENT    OF    JUVENILE    DELINQUENTS 

concerning  him  in  recent  years.  Medical  science  has  contributed 
no  small  share.  'But  it  is  not  all  brought  together  and  appreciated. 
If  it  were  we  should  not  be  following  so  closely  upon  criminal 
procedure  in " the  case  of  .the  delinquents.  Our  principles  must 
grow  Out  of  <our  experience;  our  experience  grows  only  by  small 
additions  to  that  point  where  it  is  possible  to  generalize  anew,  to 
seek  new  directions  with  confidence.  In  recent  years  the  strides 
have  been  long  and  many,  we  have  dared  to  experiment,  we  have 
enjoyed  comparing  notes.  Anyone  who  fully  appreciates  the  mag- 
nitude of  the  matter  hesitates  to  predict  for  the  immediate  future 
much  more  than  a  continuance  of  the  experimental  work,  confident 
that  after  all  our  understanding  warrants  it.  Careful  criticism  is 
due  at  every  point,  and  we  are  assured  that  it  will  be  forthcoming 
in  such  spirit  as  will  profit  us  much.  But  let  the  warning  note  be 
again  and  again  sounded  that  we  are  not  yet  building  even  the 
framework;  we  are  making  up  the  specifications.  Interest  is  deep, 
many  of  the  forces,  enlisted  are  strong,  the  problem  is^stupendous. 
We  must  be  content  to  move  slowly  and  cautiously.  Our  best 
advance  has  served  to  define  the  group  which  we  call  the  juvenile 
delinquent  group,  and  that  is  surely  half  the  battle. 

The  particular  value  of,  our  historical  study  of  the  child,  his 
delinquency,  its  nature,  causes  and  treatment,  his  standing  in  the 
group  as  reflected  in  laws  and  other  apparatus  for  conforming  him 
to  its  will,  is  not  so  much  in  the  description  of  how  the  delinquent 
child  is  and  has  been  treated,  as  in  the  possibility  of  revealing 
elementary  principles,  safe  working  directions  in  which. to  rest 
assured  of  the  sanity  and  effectiveness  of  criticism,  extension, 
elimination,,  initiative  in  method.  We  thus  confess  our  ifidebted- 
ness,  not  only  to  the  careful  student  of  child  psychology  and 
physiology,  but  to  the  Greeks  and  the  Barbarians  of  yesterday  and 
today,  who  have  experimented  and  blundered  and  succeeded,  but 
at  least  have  furnished  us  with  points  of  departure. 

It  is  of  value  to  us  certainly  to  have  recognized  that  we  have 
many  factors  to  deal  with,  demanding  co-operation,  that  the  child 
himself  is  the  greatest  factor,  that  what  the  group  expects  of  the 
child  is  a  determining  feature,  and  this  in  itself  is  a  variant.  We 
have  found  that  the  standard  of  the" primitive  group  is  simple, 
following  lines  of  instinctive  action.  That  is  good  which  furthers 
the  simple  ends  of  the  group,  and  that  bad  which  defeats  them- 
The  standard  is  much  the  same  for  the  individual,  the  family  and 
the  tribe.  The  stimulations  to  conformity  are  usually  as  simple  as 
kinship  and  direct  economic  need.  The  agencies  promoting  con- 
formity are  in  the  child's  earlier  years  the  family,  and  later  the 
tribe,  with  the  transition  usually  marked  by  some  sort  of  initiatory 
ceremonies. 

In  the  more  advanced  group  it  is  a  far  more  difficult  thing  to 
determine  what  is  good  or  bad.  With  the  complexity  of  group 
activity  the  standard  to  which  conformity  is  demanded  becomes 
less  simple,  and'  that  conformity  is  urged  and  enforced  by  legal 


PRINCIPLES    DRAWN    FROM    EXPERIENCE  57 

formulations,  more  or  less  artificial  and  arbitrary.  The  family  is 
the  agent  insisting  upon  conformity  and,  too,  through  a  more  pro- 
longed period  of  infancy,  while  at  the  same  time  the  larger  group 
formally  through  laws,  education  and  perhaps  religion, .  and  in- 
formally through  public  opinion  as  expressed  in  patriotism,  poli- 
tics, etc.,  seeks  to  prevent  delinquency.  Difficulty  creeps  in  wher- 
ever the  interests  of  the  family  actually  or  seemingly  cease  to  be 
identical  with  those  of  the  community^or  nation,  and  this  condition, 
together  with  the  inability  of  the  larger  group  to  intelligently  deal 
with  the  delinquent  child,  is  to  be  looked  upon  as  the  source  of 
our  unending  uncertainty  and  fault.  Both  family  and  state  have 
tremendous  responsibility  which  must  be  roughly  formulated  and 
well  understood.  The  child  is  a  member  of  both;  each  is  his 
guardian.  The  relation  is  real  and  close.  Ideally,  state  must  be 
essentially  family,-  and  family  of  that  character  which  makes  it 
possible  for  men  to  dwell  together  in  the  numbers  and  the  life 
necessary  in  the  state,  before  the  child  can  enter  with  any  assur- 
ance of  happiness  and  successful  outcome  upon  his  training  which 
looks  to  his  conformity  to  a  complex  ideal  under  the  direction  of 
atieast  these  t\yo  teachers. 

[_The  stale  finds  itself  confronted  withthe,  task  of  holding  Jbefore 
the  child,  who  has  already  felt  the  ffitflflrmife^  r$i^ttten~yieldmg 
his  will  to  the  members  of  his,  own  family,  thC  necessity  of  further 
considering  every  member  of  the  state  as  having  equal  rights  with 
him.  It  is  the  same  lesson  that  he  has  learned  in  the  family,  but 
it  does  not  seem  the  same.  The  state  is  impersonal;  he  is  not 
interested  in  its  Agents.  The  state  insists  that  he  shall  not  be 
delinquent.  First  it  does  this  indirectly  through  the  parent.  The 
parent  has  learned  the  lesson  and  now  hands  it  along.  If  he  fails, 
the  state  asserts  its  parental  function  by  taking  his  place  and 
declaring  him  irresponsible.  Then  directly,  by  means  of  the  law 
in  its  corrective  and  punitive  function,  by  the  schools,  by  variously 
so  fitting  and  environing  him  that  the  total  of  his  life  activities  and 
interests, may  tend  towards  harmony  with  the  group  standard,  it 
demands  conformity. 

"At  the  same  time  the  state  is  called  upon  to  recognize_the__£lo-Sg_ 
ties  of  the  family  as  an  ideal  relation  which  it  may  not  hope  to 
attain  to,  but  of  which  it  must  take  account  and  approximate  as 
nearly  as  possible.  It  must,  furthermore,  look  to  the  nature  of  the 
child.  He  is  not  a  criminal  ordinarily,  no  matter  how  serious  his 
departure  from  the  path  laid  out  for  him.  He  is  not  an  adult  in 
understanding  nor  in  judgment.  It  should  recognize  him  as  sub- 
ject for  the  same  sort  of  thing  that  it  has  learned  to  accord  him  in 
its  function  as  educator  in  those  things  calculated  to  positively 
'equip  him  for  his  place  in  the  state,  namely  formative,  directive 
influences...  He  is  the  same  being  the  state  seduces  into  effective 
citizenship  by  the  attractiveness  of  the  schoolroom;  it  must  still  be 
seducer  when  he  makes  a  mistake. 

Again,   and  quite  as  important,  the  state  must  take  account  of 


58  TREATMENT    OF    JUVENILE    DELINQUENTS 

the  fallible,  partial,  derived  nature  of  its  laws  as  an  expression  or 
even  as  a  guardian  of  group  morality.  Its  "laws"  are  a  reflector 
of  average  group  morality  and  through  them  it  is  a  schoolmaster 
to  the  child.  Its  duty  is  never  to  get  away  from  the  sense  of  the 
general,  final  power  always  resident  in  the  people  of  the  group. 
Put  into  other  form,  the  less  the  legislative,  judicial  and  police 
powers  of  the  state  are  used  merely  negatively,  and  the  more  they 
are  mediated  educatively,  on  the  truer  basis  we  shall  be.  The  law 
should  certainly  be  more  than  our  policeman.  We  have  a  right  to 
ask  today  that  it  shall  be  our  schoolmaster.  And  when  a  more 
ideal  day  arrives,  when  teachers  shall  have  been  better  trained  to  a 
larger  task,  shall  have  merited  such  distinction  by  attracting  chil- 
dren away  from  delinquency,  we  may  hope  to  turn  the  caption 
about  and  declare  that  the  schoolmaster  is  our  law. 

One  more  principle  is  fundamental.  It  would  be  impossible  to 
discover  any  advance  in  the  treatment  of  juvenile  delinquents 
which  had  not  been  inspired  by  some  interested  and  observing 
individual  and  then  enlisted  to  itself  others  among  the  few  who  are 
free  to  fight  the  battles  of  the  children.  Without  champions,  the 
cause  has  faltered  and  mistakes  been  perpetuated.  Invariably,  as 
it  has  attracted  them,  it  has  been  furthered.  Ergo,  if  the  state 
hopes  to  continually  elevate  its  standard  and  expects  conformity 
thereto,  it  must  free  a  vastly  larger  body  of  its  members  to  the 
task.  The  social  spirit  is  gaining  ground  popularly,  and  the  at- 
testation of  this  fact  lies  both  in  the  devotion  of  splendid  lives  to 
the  uplifting  of  the  unfortunate  of  every  condition  and  the  training 
of  such  workers  in  our  academic  circles.  The  state  has  one  plain 
duty,  namely  to  make  such  financial  provision  for  those  fully 
trained  that  men  and  women  most  desired  in  the  service  of  juve- 
nile delinquents  may  not  fear  to  devote  themselves  exclusively, 
professionally  to  that  service.  This  is  a  first  principle,  and  its 
neglect  is  the  gauntlet  lying  nearest  us  among  the  many  we  have 
not  dared  to  take  up. 


CHAPTER  X. 

THE    SPIRIT   OF   THE   LAW  AS  A   FACTOR   IN   THE    TREATMENT 
OF  JUVENILE  DELINQUENCY 

It  is  a  short  step  from  principles  to  means  and  methods. 
Once  granting  that  our  point  of  departure  is  the  nature  of  the 
child  and  the  significance  of  his  delinquency  to  his  life  and  there- 
fore to  the  social  body  of  which  he  is  a  part,  one  meets  the  neces- 
sity of  reviewing  the  apparatus  which  has  dealt  with  him  in  order 
to  judge  whether  it  has  taken  account  of  the  principles  gradually 
evolving  from  our  experience.  Juvenile  delinquency  renders  its 
account  first  to  the  law  of  the  realm.  Is  that  law  adequate  to  the 
situation?  What  is  its  essential  nature?  Shall  it  reflect  only  the1 
experience  of  yesterday?  Or  shall  it  be  in  spirit  leader  and 
initiator?  Shall  it  in  any  manner  experiment  with  the  situation? 
The  relation  of  law  and  delinquency  is  a  matter  which  bids  fair  to 
concern  revolution  in  law  quite  as  much  as  to  settle  specific  prob- 
lems of  delinquent  childhood. 

Pollock  (1)  says  that  law  is  the  sum  of  the  rules  necessary  to 
permit  men  to  live  together  in  harmony.  Yet  law  has  always  been 
on  a  war  basis;  it  has  been  a  protective,  regulative  thing,  a  police 
power,  even  when  it  has  risen  above  the  dignity  of  vengeance  or 
repression.  Customs,  based  on  utility  or  not  based  on  utility, 
have  become  fixed  into  law.  The  earlier  we  start  in  the  process 
the  smaller  the  group  of  persons  in  whose  interest  the  law  is 
formulated.  In  the  Homeric  stories  it  was  the  king,  with  the 
strange  mythical  partner,  Themis  or  fate,  constituting  a  sort  of 
primitive  ''divine  right  of  kings;"  in  the  Athenian  State  it  was  an 
oligarchy;  and  a  final  form  is  the  fixed  code  or  constitution  with  a 
larger  legislative  and  judicial  body. 

The  development  is  slow  and  comparative.  "The  jurispru- 
dence of  one  age  is  history  in  a  later."  2  "We  must  alternately 
consult  history  and  existing  theories  of  legislation."  3  And  through 
it  all  the  central  thing  has  been,  in  criminal  law,  indeed  in  all  law 
of  persons,  the  act  and  its  effect  upon  the  community,  whether  trie 
spirit  was  that  of  vengeance,  repression  or  reform,  rather  than  the 
person,  and  the  person  as  a  member  of  the  social  whole.  4 

Law  is  an  ethical  thing  in  not  the  highest  sense.  It  stands 
upon  a  certain  eminence  and  looks  back  over  the  field  of  human 

1  First  Book  of  Jurisprudence,  p.  u. 

2  Alfred  Russell,  "T/?e  Police  Power  of  1he  State,"  1900. 

3  O.  W.  Holmes,  Jr.,  "Common  Law,"  1887. 

4  See  American  Journal  of  Sociology,  Jan.  1899,  p.  523.     "Criminal  Anthropology  and 
Jurisprudence,"  by  Frances  A.  Kellor. 

59 


60  TREATMENT    OF    JUVENILE    DELINQUENTS 

experience  and  generalizes,  seeking  a  basis  of  harmony.  "By  far 
the  greater  part  of  our  law  has  been  and  is  developed — by  the 
judges,  the  jurists  and  the  bar,  and  the  greater  part  of  our  law  has 
been  developed  after  men  have  acted  and  in  determining  the  effect 
of  their  actions."  Legislative  enactment  "setting  out  rules  of  con- 
duct to  be  observed  subsequently  is  in  reality  the  least  important 
method  of  law  making."  5 

It  is  not  largely  an  ethical  thing  in  its  operation.  The  judicial 
arm  is  called  upon  to  pass  a  free  judgment  only  when  the  legisla- 
tive will  is  silent,  and  the  legislative  will  seems  obliged  to  take 
account  of  precedent  in  its  enactment  to  an  extent  that  is  damag- 
ing to  the  ethical  sense.  Dillon  (6)  says  that  "ethical  considera- 
tions are  generally  the  foundation  or  animating  principle"  of  enact- 
ment. The  lawyer's  business  is  to  "inform  rather  than  to  invent, 
to  be  accurate  rather  than  original;  to  chronicle  the  decisions  of 
c  others,  not  his  own  desires;  to  illumine  paths  already  trodden  *  * 
and  in  fine,  to  emblazon  that-long  list  of  judicial  precedents  through 
which  our  Anglo-Saxon  freedom  'broadens  slowly  down.'"  7  On 
its  eminence  law  remains,  -as  an  observer  and  chronicler,  with  a 
broader  vision  as  experience. widens  before  it,  always  on  a  war 
basis.  The  result  is  a  morality  as  high  as  is  demanded  by  the 
legislator  and  not  impossible  to  the  worst,  but  probably  never  in 
many  points  even  a  decent  compromise  between  best  and  worst. 
It  is  "the  embodied  conscience  of  the  political  community"  as 
Mr.  Warville  says  in  his  "Legal  Ethics,"  (8)  and  in  many 
political  communities  necessarily  very  fallible  as  an  expression 
or  guardian  of  the  ideal  group  morality  or  even  the  real  group 
morality. 

But  in  the  meantime  the  extra-legal  ethical  expressions  of  the 
relations  of  man  to  man,  especially  relations  of  children  and  the 
group,  have  gone  on  under  the  influence  of  psychological  interest 
,and  investigation.  The  individual  as  over  against  the  group  has 
taken  a  new  place.  The  former  is  a  part  of  the  latter,  not  only  in 
respect  to  his  duties  and  responsibilities,  over  against  which  are 
set  penalties,  but  he  is  a  part  of  the  group  in  his  whole  make-up, 
physical,  mental  and  moral.  The  group  duties  and  responsibilities 
come  into  view.  The  group  asks  itself  what  it  owes  to  and  may 
reasonably  expect  from  its  members,  and  the  question  is  an  ethical 
"open-sesame,"  throwing  no  small  light  on  the  individual  as  a 
being  physically,  mentally  and  morally  conditioned  by  the  group. 
As  a  result  of  this  new  attitude  laws  of  domestic  relations  "have 
felt  the  softening  influences  of  modern  civilization.  The  common- 
law  doctrine  of  parent  and  child  finds  its  most  important  modifica- 
tion in  the  gradual  admission  of  the  mother  to  something  like  an 
equal  share  of  parental  authority;  in  the  growth  of  popular  systems 
of  education  for  the  young;  in  the  enlarged  opportunities  of  earn- 

5  Russell,  "Police  Power  of  the  State,"  p.  10. 

6  Storr's  Yale  lectures,  1891-2.     '%'aws  and  Jurisprudence  in  England  and  America." 

7  Schouler,  "Domestic  Relations,"  5th  ed.,  p.  21.  8  P.  17. 


SPIRIT  OF  LAW  IN  TREATMENT  OF  JUVENILE  DELINQUENCY  61 

ing  a  livelihood  afforded  to  the  children  of  idle  and  dissolute 
parents;  and  in  the  lessened  misfortunes  of  bastard  offspring. 
Guardian  and  ward,  a  relation  of  little  importance  up  to  Black- 
stone's  day,  has  rapidly  developed  since  into  a  permanent  and 
well-regulated  system  *  *  *  and  much  of  the  old  learning  on  this 
branch  of  the  law  has  become  rubbish  for  the  antiquary.  The  law 
of  Infancy  remains  comparatively  unchanged."  9 

Theoretical  Ethics  is  departed  from  its  war  basis,  with  the  selfv 
assertion  of  its  Egoism,  the  self-suppression  of  its  Determinism, 
the  truce  and- compromise  of  its  Prudentialism,  its  "computed 
expediency,"  and  has  come  to  peace,  to  self-sacrifice  in  its  idealism. 
In  its  train  have  gone  psychology  and  pedagogy  and  to  a  large  ex- 
tent even  Criminal  Anthropology.  Why  should  not  Jurisprudence 
follow  also,  especially  in  its  law  of  persons?  The  evidences  just 
read  are  but  the  slightest  indication  of  its  intention.  There  is 
other  evidence,  however,  in  the  movement  centering  about  the 
Juvenile  Court,  insofar  as  it  is  disposed  to  recognize  the  well- 
accepted  facts  concerning  the  nature  of  the  adolescent  youth. 

It  is  interesting  and  profitable  to  note  the  source  of  the  existing 
juvenile  law  reform.  It  came  from  the  psychologists,  the  educa- 
tors, the  theorists,  the  students  of  children  otherwhere  than  in  the 
courts.  It  was  irresistible — because  it  was  true.  It  is  one  of  the 
most  splendid  instances  in  all  legislation  that  the  people  are  the 
law,  that  there  is  nothing  inherent  in  the  nature  of  the  law  that 
prevents  it  from  entering  into  its  inheritance  of  moral  right  in 
some  form,  and  that  assigns  to  it  the  exercise  of  police  power  only, 
forbidding  it  to  become  in  any  real  sense  a  formulator  of  peace 
measures  in  the  interests  of  childhood.  Pollock  says,  (10)  "Law 
cannot  enforce  all  moral  rules,  but  may  sometimes  react  on  the 
moral  standards  *  *  *  It  may  even  elevate  the  standard  of  cur- 
rent morality."  Indeed  it  may  elevate  the  standard  of  morality, 
and  what  institution  is  in  better  position,  or  is  in  possession  of 
more  actual  experience  out  of  which  to  raise  a  standard? 

This  last  fundamental  generalization  is  by  no  means  a  maxim 
in  jurisprudence;  it  is  anything  but  that.  The  facts  that  have 
made  possible  the  entering  wedge  in  the  treatment  of  juvenile 
delinquents  could  all  have  been  gathered  by  the  agents  of  the  law, 
and  were  observed  by  them,  yet  what  action  has  been  taken  was 
under  strong  protest  from  administrators  of  the  law  in  many  quar- 
ters and  resented  as  the  dreams  of  dilletantism. 

Yet  there  is  serious  disadvantage  in  having  those  outside  the 
legislative  and  judicial  and  administrative  machinery  the  only  ad- 
vocates of  ethical  peace.  It  means  a  double  standard,  hostility  of 
forces,  waste  of  energy  and  expense,  relegating  to  individual  initia- 
tive and  institutional  (private)  care  what  should  be  public  interest. 
The  law  is  in  such  position,  in  its  actual  contact  with  the  juvenile 
delinquent,  observation  of  his  life,  environment,  training,  etc., 

9  Schouler's  "Domestic  Relations,"  5th  ed.,  pp.  20-21. 
10  "First  Book  of  Jurisprudence,"  46ff. 


62  TREATMENT    OF    JUVENILE,    DELINQUENTS 


that  no  other  c^n  so  well  'judge  of  the  nature  of  a  child's  delin- 
quency. Here  is  avchild  subject  for  -educational  treatment  in 
accordance  with  another  ethical  standard  and  another  pedagogical 
apparatus,  in  the  hands  of  an  institution  whose  ethical  decalog 
has  been  written  in  characters  of  repression,  correction  or  at  best 
reformation.  Let  it  be  so;  here  lies  the  suggestion  of  our  juvenile 
salvation.  The  law  is  its  own  best  student,  critic,  observer,  legis- 
lator. It  is  the  institution  that  is  ^observing  the  delinquent  mem- 
bers of  the  community,  after  some  act  has  given  them  the  warning. 
It  is  also  the  institution  that,  using  its  understanding  of  this  class, 
should  turn  its  attention,  guided  by  the  new  principle  underlying 
the  law,  to  the  prevention  of  delinquency.  Here  is  a  part  of  the 
juvenile  world  that  is  waiting  in  earnest  expectation  for  the  reveal- 
ing of  common  sense. 

The  traditional  place  of  the  law  is  in  the  courts,  dealing  with 
the  exceptions,  with  the  rebels  or  the  ignorant  or  the  careless. 
Therefore  we  have  difficulty  in  recognizing  it  when  in  and  out  of 
the  court-room  it  commits  itself  to  dealing  with  incipient  or  threat- 
ened delinquency  or  to  the  actual  prevention  of  it.  But  is  it  not 
the  name  law  that  punishes  truancy  and  makes  possible  the  school? 
Is  it  not  the  same  public  spirit  which  stands  behind  the  school- 
teacher and  the  judge.  Is  it  not  the  same  end  that  they  seek? 
Again,  that  the  courts  have  been  dealing-  with  adults  and  criminals 
until  the  spirit  of  vengeance  and  repression  and  reformation  pre- 
vails, making  it  difficult  for  the  officials  when  placed  in  charge  of 
the  children's  courts  to  get  away  from  that  spirit  into  a  more  fit- 
ting one.  The  law  as  it  operates  in  the  children's  courts  and  in 
the  maintenance  of  the  public  schools  is  the  same  thing,  and  should 
be  actuated  by  one  spirit.  These  two  are  among  the  greatest 
public  agencies  for  dealing  with  the  child,  and  many  children  still 
slip  through  into  delinquency  of  a  serious  nature.  More  is  due  to 
the  development  of  the  children  than  these  agencies  now  afford. 
Some  supplementary  measures,  some  extension  of  function  there 
must  be,  call  them  preventive  or  educational  as  we  may.  Now  if 
the  law  as  it  operates  in  the  children's  courts  can  be  seen  to  be 
the  same  thing  as  that  in  the  public  school  I  believe  that  these 
supplementary  agencies  may  better  be  a  part  of  the  court  than  of 
the  school,  because  the  court  is,  by  its  historical  position  and  atti- 
tude, looking  for  delinquency  while-the  school  expects  conformity. 
Let  the  instruction  of  the  public  as  to  conditions  in  the  commu- 
nity threatening  delinquency  be  a  function  of  the  children's  court. 
Let  the  records  of  bad  housing  and  over-crowding  and  bad  streets 
and  poor  sanitation  and  lack  of  playgrounds  and  ignoring  of  laws 
of  labor  and  all  the  defects  which  actually  contribute  to  delin- 
quency, and  which  may  be  remedied  by  the  community,  be  her- 
alded abroad  by  the  court.  Let  the  agitation  centre  here.  Let 
the  remedial  measures  in  the  form  of  clubs  and  night  schools  and 
employment  bureaus  and  giving  of  aid  and  the  hundred  other 
things  that  are  undertaken  by  the  outsiders,  become  legal  things. 


SPIRIT  OF  LAW  IN  TREATMENT  OF  JUVENILE  DELINQUENCY  63 

Make  it  possible  for  Judge  Lindsey  to  do  his  work  as  Judge  Lind- 
sey  and  not  as  a  philanthropic  bachelor  who  does  as  a  "father"  to 
the  boys  what  he  is  not  permitted  to  do  as  Judge. 

The  protest  comes  that  the  law  in  the  form  of  the  children's 
court  would  be  little  other  than  an  experiment  station  thus.  But 
the  schools  have  done  some  very  profitable  experimenting  for  the 
child,  and  at  the  same  time  have  retained  their  disciplinary  power. 
Why  not  so  with  the  courts?  The  agents  of  the  law  are  not  qual- 
ified to  do  such  work?  It  is  not  the  formal  agents  of  the  law  in 
any  but  exceptional  cases  that  are  doing  the  work  of  the  children's 
courts  anyway.  There  are  plenty  of  individuals  and  institutions 
willing  enough  to  see  their  work  organized  permanently  in  the 
extended  functioning  of  the  court,  and  content,  furthermore,  to  see 
the  law  in  the  business  of  elevating  the  standard  of  the  group 
through  any  means,  even  though  it  depart  from  traditional  paths. 

Thus  the  law,  one  expression  of  the  voice  of  the  group,  is 
challenged  to  a  fresh  study  of  the  child,  to  a  new  approach  to  the 
matter  of  juvenile  delinquency.  It  is  asked  to  become  an  agent  in 
the  formative  process  in  accordance  with  the  principles  above 
formulated.  Judging  from  results  already  attained,  the  form  which 
the  growing  understanding  of  the  matter  will  take  will  be  more 
laws  specifically  aimed  to  make  permanent  the  claims  of  those 
who  have  been  closest  students  of  child  nature,  and  displacing  in- 
adequate and  unfit  laws,  especially  those  relating  the  juvenile 
delinquent  to  the  criminal.  The  legal  judgment  passed  upon  him 
will  be  different  from  that  of  the  criminal  more  uniformly  than 
now,  and  will  be  reached  by  a  more  direct  path.  In  our  legal 
conservatism  we  have  hesitated  to  go  very  far  from  the  well- 
beaten  way.  A  firm  grasp  on  the  spirit  and  meaning  of  the  law  is 
bound  to  make  us  fearless  and  independent.  Other  directions  of 
juvenile  law  reform  will  take  account  of  two  chief  relations  of  the 
child,  the  home  and  the  school  ties,  resulting  on  one  hand  in  vastly 
closer  co-operation  between  the  court  and  the  school,  and  on  the 
other  in  a  surprisingly  extended  exercise  of  the  parental  function 
of  the  state  over  the  parents.  So  long  has  it  been  thought  that  the 
only  exercise  of  this  power  possible  was  in  taking  the  place  of  the 
parent  when  he  failed  with  the  child  that  we  have  not  been  well 
prepared  for  the  paradox  presented  in  the  state  turning  adviser  to 
and  guardian  of  the  parent,  doing  through  the  parent  as  proxy 
what  it  learned  from  the  parent.  That  feeling  of  responsibility 
which  is  or  should  be  instinctive  with  the  parent,  growing  into 
great  proportions  as  the  possibilities  of  the  life  of  the  child  are 
measured,  is  a  thing  of  reason  to  the  state.  One  plain  direction 
of  juvenile  law  reform  will  be  the  reasoned  quickening  by  the  state 
of  the  failing  instinct  of  the  parent. 


CHAPTER   XL 
THE  FUNCTION  OF  THE   COURT  AND   THE  PROBATION   SYSTEM 

The  friends  of  the  children's  court  are  rapidly  generalizing 
their  experiences.  A  branch  of  the  criminal  system  in  its  origin, 
it  has  now  entered  into  an  estate  of  its  own,  in  many  cases  practi- 
cally independent.  In  its  constitution  and  procedure  it  necessarily 
much  resembles  its  ancient  parent,  but  this  much  may  now  be 
said,  that  in  general  it  is  already  looked  upon  as  a  legalized  child- 
saving  institution,  correcting  delinquency  and  preventing  crime. 
What  it  should  be  is  a  legalized  child-stutfymg  and  child-forming  in- 
stitution, as  far  as  possible  preventing  delinquency.  There  is  no 
doubt  that  as  the  years  go  on  it  will  be  more  and  more  an  inde- 
pendent organization,  free  to  extend  as  it  sees  best,  carrying  over 
nothing  from  the  law,  which  will  always  stand  behind  it,  except 
its  sanction  of  power,  and  through  its  experience  exercising  a  reflex 
influence  on  the  law  in  its  spirit  and  letter.  If  the  child  is  ever 
father  of  the  man,  we  shall  see  that  case  here,  with  the  juvenile 
delinquent  court  teaching  its  well-learned  lessons  to  the  criminal 
court. 

Nothing  is  contributing  to  its  thorough  emancipation  and  its 
effectiveness  so  much  as  the  interest  and  consecration  of  its  friends. 
What  would  not  yield  to  that!.  Let  it  be  kept  from  the  moth  and 
the  rust  of  politics  and  '  'graft"  and  it  cannot  fail  to  exercise  a 
tremendous  influence  upon  future  national  life.  It  has  its  positive 
tasks.  It  must  agitate.  It  must  experiment.  It  must  demand 
funds  of  the  municipality  for  the  care  of  the  child  when  necessary. 
It  must  press  the  duty  of  equipping  and  maintaining  the  best  men 
and  women  who  can  thus  be  drawn  into  its  service.  It  must  legal- 
ize its  powers  over  parents  and  children — powers  that  seem  absurd 
to  those  who  are  accustomed  to  appeal  to  the  state  for  the  exercise 
of  individual  freedom.  Law  is  the  only  means  to  freedom,  as  it 
has  been  the  only  means  to  protection  and  as  it  shall  be  the  only 
means  of  development  and  education  of  many  of  our  powers. 
The  court  must  remain  a  legal  thing,  but  with  powers  and  oppor- 
tunities commonly  not  associated  with  the  formal  concept  of  law. 
Its  problems,  beyond  those  suggested,  will  solve  themselves  as  its 
place  is  fixed  and  its  guiding  principles  formulated.  More  than 
specific  suggestions  concerning  advance,  we  need  full  understand- 
ing of  the  principles  underlying  our  procedure.  These  are  just 
beginning  to  appear,  and  to  be  formulated. 

He  who  said  that  the  judge  was  the  "centre"  of  the  juvenile 
court  system  spoke  the  truth.  But  he  can  be  only  "centre"  in 

64 


FUNCTION    OF    THE    COURT    AND    THE    PROBATION    SYSTEM  65 

himself  alone.  The  probation  officer  is  the  radius,  and  to  him  is 
left  the  task  of  determining  by  the  length  of  his  service  to  the 
child  where  shall  be  drawn  the  circumference  which  measures  the 
total  influence  of  the  system.  The  judge  alone  touches  the  child 
at  one  point.  The  probation  officer,  and  through  him  the  judge, 
has  as  many  points  of  contact  with  him  as  he  will.  In  this  simple 
analogy  appears  the  whole  matter  of  probation.  Shall  it  be  simply 
an  administrative  arm  of  the  court  \  Shall  the  probation  officer  be 
only  a  clerk  or  at  most  a  lawyer  to  investigate  and  plead  the  case? 
Shall  the  judge  create  the  officer  'and  limit  or  define  his  place?  Or 
shall  the  task  make  the  man?  Upon  the  answers  to  these  ques- 
tions, worked  out  in  the  next -few  years  of  experience,  depends  the 
sphere  of  the  probation  officer,  and  more,  the  meaning  of  probation. 

Already  many  cases  are  investigated  and  dismissed  by  proba- 
tion officers  without  having  a  hearing  before  the  judge.  Already 
officers  extend  the  radius  of  their  influence  and  power  beyond  what 
is  required  by  the  judge  and  the  law,  and  do  it  because  there  is 
need  that  it  be  done.  Already  latitude  is  given  the  officers  by 
intelligent  judges  which  amounts  to  an  extensive  guardianship 
over  the  child,  over  the  parents,  over  the  school  life  and  the  work 
life  of  the  paroled  delinquent.  The  life  of  many  an  officer,  is  an 
incarnation  of  the  gospel  of  contact.  He  determines  how  long  a 
period  his  active  influence  shall  cover,  how  real  and  how  practical 
shall  be  the  help  he  renders,  how  little  he  shall  be  an  officer  of  the 
law  and  how  much  an  interested  companion  and  adviser. 

But  the  radius  of  action  is  usually  much  too  limited.  Officers 
have  not  had  opportunity  to  imbibe  the  broad  social  spirit  that 
actuates  the  best  service.  They  are  not  trained  to  observe  condi- 
tions that  cause  delinquency.  The  apparatus  calculated  to  insure 
honest,  effective  effort  in  behalf  of  delinquency  is  slow  in  the 
making.  It  must  wait  for  experience  in  many  fields,  and  for 
experienced  and  sane  teachers.  It  must  wait  for  public  sympathy 
and  public  support.  Again,  it  is  condemned  to  wait  for  public 
indifference  to  pass  away.  Like  all  good  enterprises,  it  must  wait 
long  after  it  has  begun  to  deserve  a  hearing. 

The  probation  system  is  bound  to  present  a  fine  example  of  the 
fact  that  we  must  eternally  move  backward  towards  an  ideal  but 
never-to-be-reached  point  where  prevention  may  properly  begin. 
We  prevent  crime  by  taking  the  delinquent  in  hand.  We  prevent 
delinquency  by  educational  methods,  especially  by  such  methods 
as  will  interest  the  child  in  line  with  his  instinctive  action.  He  is 
a  playing  animal;  he  is  a  constructor,  an  actor.  Therefore  we  are 
beginning  to  let  him  play  and  build  and  effect  things.  The  pro- 
bation system  must  find  itself  in  methods  far  back  in  the  line  of 
prevention,  hand  in  hand  with  other  educational  methods  where 
possible,  and  in  spirit  pregnant  with  this  view  of  the  matter. 
There  is  nothing  inconsistent  in  the  notion  of  a  probation  officer 
being  a  policeman  in  one  instance  or  at  one  time  and  a  teacher 
and  leader  in  another,  unless  it  lies  in  the  narrow  and  too  special 


66  TREATMENT    OF    JUVENILE    DELINQUENTS 

interpretation  of  both  functions.  Finding  its  beginning  in  the 
desire  to  prevent,  its  experience  has  at  many  points  taught  it  that 
a  prime  way  to  prevent  is  to  use  the  child's  interest  and  powers. 
The  boy  who  steals,  perhaps  does  it  because  he  has  no  work  by 
which  to  earn  and  buy.  The  boy  who  is  incorrigible  probably 
would  as  easily  spend  his  over-abundant  energies  in  work  that  was 
attractive.  Thus  the  officer  finds  it  necessary  to  be  fundamentally 
two  things,  policeman  and  teacher  or  leader.  He  must  be  these 
things  whether  the  case  gets  to  the  court  or  not.  If  he  is  to  suc- 
ceed he  must  extend  his  office  and  anticipate  legal  action,  especial- 
ly in  connection  with  the  school,  the  truant  officer  and  the  home. 
He  mingles  with  the  folk  of  the  community.  Better  than  almost 
anyone  else  he  knows  its  pulse  and  its  life  if  his  territory  be  small 
enough.  He  sees  more  than  the  policeman  and  more  than  the 
teacher,  because  he  is  looking  for  more.  To  a  great  many  he  may 
be  more  important  than  either.  Do  we  in  our  eagerness  exalt  the 
office  of  the  probation  officer?  Surely  not  when  we  consider  that 
the  comparatively  few  he  has  to  deal  with  are  the  very  ones  whose 
salvation  to  good  life  is  of  the  moment  of  life  and  death  to  the 
community.  Surely,  too,  we  thus  exalt  him  as  he  is,  but  not  as  he 
has  opportunity  to  be.  The  greatest  service  that  can  now  be 
rendered  to  probation  is  the  opening  up  of  its  possibilities  to  those 
who,  consecrated  but  somewhat  untrained,  have  enlisted  and  do 
their  tasks  as  well  as  possible,  but  who  feel  themselves  handi- 
capped and  checked  by  lack  of  thorough  knowledge  of  conditions, 
by  the  narrowly  legal  view  of  their  office,  and  by  the  fact  that 
theirs  is  a  pioneer  field.  Every  officer  could  double  his  service  by 
assuring  himself  that  in  pioneering  one  is  not  held  to  beaten  paths, 
and  by  further  assuring  himself  that  he  does  not  do  half  his  duty 
unless  he  possesses  his  country  as  unexplored  land  and  in  an 
unhampered,  unlimited,  spirited  answering  of  the  call  of  juvenile 
delinquency  for  the  satisfaction  of  needs  that  neither  delinquents 
nor  their  guardians  fully  know. 


CHAPTER  XII. 

WHERE  THE  JUVENILE  DELINQUENT  RANKS  ARE  RECRUITED 
IN  ST.  LOUIS;  SUGGESTIONS  FROM  A  PARTICULAR  STUDY 

There  is  fair  chance  today  to  view  the  world  from  which  the 
ranks  of  the  juvenile  delinquents  are  recruited.  Such  a  view  opens 
retrospectively  into  conditions  and  causes,  and  at  the  same  time 
reveals  the  problems  of  the  future  with  some  solutions.  Less  each 
year  it  is  necessary  to  guess  and  experiment  with  delinquents; 
more  and  more  does  our  experience  shape  itself  into  confidence  in 
dealing  with  the  situation.  A  bit  of  experience  from  the  city  of 
St.  Louis  is  instructive.  The  law  establishing  the  juvenile  court 
there  was  approved  March  23,  1903,  and  went  into  effect  immedi- 
ately. The  number  of  cases  examined  is  not  very  large,  the 
records  are  not  completely  kept,  the  force  employed  is  altogether 
inadequate,  the  atmosphere  is  more  than  in  many  courts  that  of 
the  criminal  court,  but  the  experience  is  uniform  month  after 
month,  and  presents  in  general  the  same  aspects  to  be  observed 
elsewhere. 

/.  The  Recruiting  of  the  Ranks.  Through  the  courtesy  of  the 
probation  officers,  who  are  making  a  good  fight  for  their  charges, 
the  records  of  many  months  were  thrown  open  for  examination, 
and  several  hundred  cases  closely  considered.  The  records  of  ten 
years  hence  will  be  a  veritable  mine  in  comparison  with  this  survey 
of  the  surface.  A  few  localities  furnish  the  great  numbers  of  delin- 
quents. Conditions  in  those  localities  are  such  that  delinquency 
may  be  expected.  The  situation  presents  no  mysteries.  Care 
was  taken  to  weigh  any  unusual  circumstances  which  would  not 
ordinarily  be  duplicated.  The  results  are  worth  our  while.  Of 
one  group  of  200  delinquents,  so  selected  that  arrests  at  all  seasons 
of  the  year  were  represented,  a  certain  5  of  the  12  police  districts 
contributed  74  per  cent.  The  same  .districts  claimed  65  per  cent, 
of  another  200,  and  throughout  the  records  these  five  districts  are 
seen  to  have  manufactured  delinquents  and  turned  them  over  to 
the  juvenile  court  in  entirely  disproportionate  numbers.  This 
furnished  the  basis  of  extended  inquiry.  Next  it  was  necessary  to 
learn  whether  the  delinquents  arrested  in  these  districts,  namely 
Nos.  2,  3,  4,  5,  and  Central,  lived  in  the  districts  in  which  they 
were  arrested,  or  lived  elsewhere,  and  made  these  their  « 'hang-out." 
Central  Police  District  is  that  which  embraces  the  main  business 
streets  of  the  city,  extending  in  length  back  from  the  Mississippi 
River  twenty-four  blocks,  being  about  half  as  wide  as  long.  Dis- 

67 


68  TREATMENT    OF    JUVENILE    DELINQUENTS 

tricts  4  and  5  lie  to  the  north  and  2  and  3  to  the  south  of  Central 
District,  all  being  skirted  by  the  River,  quite  thickly  populated, 
with  little  park  space,  poorly  built  up  in  the  residence  sections, 
and  with  dirt}',  crowded  streets.  It  is  not  strange  that  they  con- 
tribute so  large  a  share  of  delinquents. 

The  place  of  arrest  is  important.  If  large  numbers  are  arrested 
in  one  locality,  the  presumption  is  that  there  is  a  sore  ppot  in  city 
juvenile  life.  The  investigation  proved  that  the  nearer  the  centre 
of  the  city  where  conditions  are  hostile  to  clean  living,  the  greater 
the  number  of  arrests,  or  in  other  words,  other  things  being  equal, 
the  greater  the  liability  to  delinquency  on  the  part  of  the  children. 
From  all  parts  of  the  city  they  flock  to  this  section.  District  2  is 
a  large  district,  and  the  larger  part  of  it  is  a  considerable  distance 
from  the  real  hot-bed  of  delinquency.  Only  5  per  cent,  of  those 
arrested  in  that  district  out  of  a  considerable  number  lived  outside 
that  district,  that  is,  found  "hang-outs"  away  from  home.  95  per 
cent,  were  arrested  in  their  own  district,  and  the  number  was  not 
abnormal,  considering  the  unfavorable  conditions.  In  District  3 
8.7  per  cent,  were  from  the  outlying  districts,  this  being  a  bit 
nearer  the  centre  of  the  city.  District  5  contributed  a  large  share 
to  the  total  and  21  per  cent,  had  drifted  in,  to  be  arrested  in  Dis- 
trict 5  "hang-outs."  A  still  larger  number  came  from  without  to 
District  4,  over  18  per  cent,  not  residing  there.  More  than  30  per 
cent,  of  all  the  arrests  in  the  city  came  from  Central  District,  and 
Gl  per  cent,  of  these  did  not  reside  there.  These  figures  are  essen- 
tially duplicated  in  the  total  experience  of  the  court.  The  nearer 
the  evil  and  confusion  and  looseness  of  the  centre  of  the  city,  the 
more  delinquency,  and  the  increase  is  evidently  not  the  nat- 
ural accompaniment  of  boy  and  girl  life,  but  is  the  accompaniment 
of  the  life  of  those  particular  districts  where  life  is  worst.  In 
absolute  numbers  the  most  guilty  are  Central  and  Nos.  4  and  5, 
the  second  of  these  presenting  conditions  that  are  particularly  dis- 
graceful. A  study  of  this  district  is  very  enlightening,  if  we  use 
the  juvenile  court  figures  as  a  basis,  then  examine  the  locality,  and 
finally  grasp  the  causal  relations,  poverty,  miserable  accommoda- 
tions of  life,  lack  of  opportunity  on  one  side,  and  failure,  delin- 
quency and  crime  on  the  other.  The  Open  Air  Playgrounds  Com- 
mittee of  the  Civic  Improvement  League,  in  its  report  of  1903, 
analyzes  the  lower  half  of  this  district,  nearest  the  River,  includ- 
ing in  the  analysis  a  small  part  of  District  No.  5,  which  part  is  of 
far  higher  average  than  the  portion  of  District  No.  4  described. 
But  taking  the  inventory  of  the  whole  section  the  following  is 
the  equipment  for  manufacturing  delinquents: 

92  blocks  and  a  population  of  30,000,  among  them  Negroes,  Russian 
Jews,  Germans,  Irish,  Poles,  Italians,  Syrians  and  Roumanians. 
7  blocks  have  a  density  of  more  than  300  people  per  acre. 
2T,       "  "     "        "          "    from  200  to  "         "          "       " 

28       "  "     "        "          "      "      TOO  "  200       "          "       " 

12       "  "      "        50  "  loo 

22       "  "     "       "  .  .     "  less  than  50  people  per  acre,  but  are 


SUGGESTIONS    FROM    A    PARTICULAR    STUDY  69 

used  almost  entirely  by  foundries,  factories,  lumber  yards,  stores, 
warehouses,  railroads. 

The  largest  actual  density  is  656  people  per  acre. 

The  average  for  the  city  is  less  than  50  people  per  acre. 

There  are  no  parks,  and  very  little  play  space  is  available. 

The  enrollment  of  the  schools  for  the  year  1902-1903  was  4159. 

No  compulsory  education  law. 

Nearly  all  streets  unpaved. 

Street  cars  on  every  street  north  and  south. 

Street  cars  on  all  but  two  streets  east  and  west. 

Three  schoolhouses  with  no  adequate  playgrounds. 

In  this  district  we  also  find  5  Jewish,  6  Catholic  and  18  Protes- 
tant churches  and  missions,  but  what  is  needed  is  not  churches, 
but  places  for  the  outlet  of  youthful  spirits.  The  committee  re- 
ports, "if  the  schools  were  provided  with  adequate  spaces  for 
playgrounds,  open  after  school  hours,  during  the  school  year,  and 
open  throughout  the  summer  vacation,  a  material  reduction  of 
juvenile  arrests  would  follow."  It  hardly  seems  necessary  to  add 
that  the  same  result  would  follow  if  the  life  indoors  were  more 
attractive,  if  the  houses  were  well  built  and  roomy,  with  back  and 
front  yards  for  play  spaces.  The  houses  are  built  flush  with  the 
walks.  The  children  are  driven  to  the  streets  and  the  delinquen- 
cies are  those  of  the  street,  such  as  ball-playing,  "flipping"  cars, 
"crap-shooting,"  petty  stealing,  fighting,  gang  organization  and 
depredation. 

2.  The  FaAs  Ensemble  in  the  Records.  It  is  as  easy  to  fix 
the  responsibility  as  it  is  unpleasant  to  some  to  have  it  so  fixed. 
With  this  particular  locality  in  mind  it  may  be  profitable  to  sug- 
gest in  detail  such  organization  of  forces  and  such  procedure  as 
would  lay  the  situation  open  to  all  interested  and  demand  action 
from  whom  action  is  due.  First  of  all  the  facts  must  be  known, 
and  must  be  known  ensemble;  the  whole  picture  must  appear  at 
once.  There  is  much  value  in  the  cartoon  method,  which  calls  for 
but  a  glance  to  convey  the  idea.  No  less  important  is  it  that  the 
whole  predicament  of  the  juvenile  delinquent  be  portrayed  in  a 
carefully  formulated  record,  or  at  least  that  to  a  few  minds  it  be 
declared  by  as  many  records  as  may  be  necessary.  It  should  be 
known  and  advertised,  for  the  story  is  so  tragic  and  so  needless 
that  its  recital  and  portrayal  is  its  best  argument. 

The  present  records  are  too  exclusively  history  sheets  of  the 
case  in  hand,  of  use  only  to  the  probation  officer  and  the  judge, 
and  too  little  calculated  to  serve  the  larger  purpose  of  making 
those  very  records  to  a  large  extent  unnecessary.  It  is  a  natural 
error.  But  if  the  records  were  such  that  every  entry  condemned 
someone  besides  the  child  and  justly  so,  laying  bare  someone's 
fault,  the  very  clerks  who  registered  them  would  cry  out  against 
the  wrong.  It  is  the  repeated  generation  of  such  feeling  that 
spells  reform.  It  is  not  enough  that  the  child's  address,  age,  place 
of  birth,  parentage,  occupation  of  self  and  parents,  nationality  and 
creed  of  all,  members  of  family,  name  and  address  of  employer, 
name  of  school-teacher  be  given.  The  majority  of  these  things 


70  TREATMENT    OF    JUVENILE    DELINQUENTS 

have  little  to  do  with  his  delinquency,  and  not  always  much  to  do 
with  his  salvation.  The  causes  are  easier  to  get  at  than  they  seem. 
The  data  mentioned  above  are  usually  given  with  a  fair  degree  of 
accuracy  and  are  in  some  cases  valuable.  But  the  matters  calling 
for  most  attention  are  slighted,  the  officer  does  not  care  or  does 
not  have  time  to  ascartain  the  truth  and  cannot  depend  on  the  child 
to  report  correctly.  The  ecclesiastical  connections  of  the  child 
and  family  are  important  in  that  certain  forces  there  may  be  called 
in  to  investigate  the  case  further  and  to  contribute  largely  in  the 
reformation  or  help  of  the  child.  The  names  of  employer  and 
teacher  mean  nothing  on  the  records,  but  consultation  with  them 
and  enlistment  of  them  in  the  campaign  means  much.  It  is  prob- 
ably a  fact  that  very  generally  these  things  are  neglected.  Cer- 
tainly it  has  been  so  in  the  writer's  knowledge  of  the  matter. 

In  the  St.  Louis  records  there  is  a  caption,  "Social  Environ- 
ments," and  the  entry  is  usually,  "Five  rooms,"  "One  room," 
"Bad,"  or  other  vague  and  uninspiring  record,  and  as  long  as 
there  are  no  more  officers  to  relieve  the  over-burdened  and  help- 
less strugglers  this  most  important  factor  will  be  much  neglected. 
Of  one  group  of  200  cases  what  few  figures  were  given  showed  that 
the  average  number  of  rooms  per  family  was  3.21.  The  result  is 
valueless.  The  figures  are  incomplete,  some  of  the  children  had 
no  rooms  to  live  in  at  all,  and  the  number  in  the  families  was  not 
given.  It  certainly  happens  often  that  two  rooms  for  one  family 
would  be  better  than  eight  for  another.  But  if  it  were  possible  to 
keep  these  statistics  completely  it  might  be  shown  that  a  certain 
district  were  overcrowded  shamefully,  that  the  law  was  being 
violated,  that  the  large  part  of  the  blame  for  delinquency  lay  at 
the  feet  of  the  landlords.  If  so,  a  thousand  probation  officers 
would  be  of  little  service,  while  a  bit  of  reform  which  might  be 
brought  about  in  six  months  or  less  might  change  the  face  of  the 
situation.  Again,  the  condition  of  the  streets  and  alleys  might  be 
serious,  the  play  spaces  inadequate  or  absent.  If  so,  one  need  go 
no  farther  in  search  of  causes  of  delinquency.  The  educational 
opportunities  might  be  poor,  the  police  force  small  or  corrupt,  the 
neighborhood  flooded  with  criminals  and  criminal  resorts.  The 
probation  officer  would  be  helpless. 

In  all  this  we  have  halt  presumed  that  the  probation  officer  is 
not  merely  to  deal  with  the  particular  cases  paroled  to  him,  but  is 
a  sponsor  of  the  juvenile  life  of  the  community.  That  he  is  not  at 
present,  but  will  be,  and  without  being  policeman.  He  cannot 
afford  longer  to  needlessly  spend  his  energies  reforming  and  watch- 
ing after  the  trouble  has  begun,  and  raise  no  hand  or  voice  in  pro- 
test against  the  continued  presence  of  causes.  He  is  not  the  sort 
of  individual  surely  who  would  gladly  see  the  grist  coming  in 
simply  because  he  held  a  position  in  the  mill.  We  cannot  pre- 
sume that  the  juvenile  court  in  its  records  is  to  constitute  the 
statistical  department  of  the  city.  But  we  do  insist  that  a  thor- 
ough grip  on  the  situation  presupposes  the  existence  of  such 


SUGGESTIONS  FROM  A  PARTICULAR  STUDY  71 

statistical  department,  and  the  full  use  of  it  by  the  court  and  the 
probation  officers  not  only  in  dealing  with  the  children,  but  in 
dealing  with  the  community  at  large  in  the  effort  to  make  it  see  its 
responsibility.  The  probation  officer  and  the  court  have  no  right 
not  to  be  reformers!  The  first  step  in  reform  is  education — educa- 
tion to  the  facts.  It  would  be  a  great  service  to  any  city  if  the 
statistical  department  should  be  centralized,  and  statistics  of 
health,  tenements,  streets,  population,  education,  recreation,  em- 
ployment, industry,  moral  and  religious  forces  be  so  easy  of  access 
and  combination  that  at  any  time  a  community  might  have  placed 
before  it  a  cartoon  of  itself  that  might  be  suddenly  shown  to  be  not 
a  cartoon,  but  an  actual  likeness.  Do  moral  conditions  wait  upon 
dry  statistics?  Yes,  but  the  figures  are  clothed  with  life!  The 
task  that  is  waiting  to  be  done  is  the  gathering  together  of  the 
facts  and  turning  them  into  a  propaganda.  The  Civic  Improve- 
ment Leagues  are  undertaking  the  task  in  some  cities.  It  must  be 
done  now  with  the  Juvenile  Court  as  the  point  of  departure.  The 
Juvenile  Court  will  live  by  giving  life. 

*  3.  The  Task  of  the  Schools.  Invariably  the  records  of  a 
juvenile  court  furnish  evidence  that  the  child  has  not  been  drawn 
out,  educated,  trained  properly.  The  family  comes  in  for  the  first 
and  largest  share  of  the  blame,  and  then  the  school  is  proven 
guilty.  It  would  be  presumptuous  and  unfitting  to  here  propose  a 
curriculum  better  suited  than  that  in  vogue  to  save  the  child  from 
delinquency.  The  best  will  always  be  open  to  the  charge  of  being 
unrelated  to  the  life  that  the  child  will  enter  after  his  school  days, 
and  the  charge  will  be  unjust  in  proportion  as  the  purpose  of  edu- 
cation is  misunderstood.  The  school  cannot  afford  to  make  its 
sole  end  the  production  and  turning  out  of  finished  engineers, 
carpenters,  ministers  or  lawyers;  to  be  a  man  is  vastly  more  impor- 
tant, to  be  upright,  considerate  of  all  things  and  all  men,  to  be  an 
effective  servant  to  the  highest  welfare  of  the  community.  Yet  the 
life  of  the  delinquent  is  a  call  for  certain  things. 

a.  Compulsory  Education.     It  goes  without  contention   that 
education  should  be  compulsory.     The  records  of  such  a  court  as 
that  at  St.  Louis,  where  of  one  year's  grist  only  21  per  cent,  were 
in  school,  are  sufficient  argument  except  in  localities  where  for  one 
reason  or  another  ignorance  is  courted. 

b.  Moral  Training.     Evidently  the  most  important  element 
in  education  for  the  prevention  of  delinquency,  is  proper  moral 
training.     The  child  who  is  schooled  to  fear  the  consequences  of  a 
wrong  decision,  to  turn  decidedly  upon  the  wrong  as  soon  as  it  is 
detected,  as  Christ  turned  upon  the  protest  of  Peter  that  he  need 
not  go  to  the  contemplated  lengths  of  sacrifice,  is  the  child  who 
will  at  once  avoid  delinquency  and  be  best  fitted  to  meet  the  trust 
that  modern  life  gives  into  his  hands.     The  result  will  be  failure 
where   Rooseveltian  fearlessness  of  consequences  of  decision  is  not 
found.     The  teacher  is  a  poor  teacher  who  fails  here.     The  ques- 
tion of  moral  instruction  is  not  one  to  be  consigned  to  the  ethical 


*72  TREATMENT    OF    JUVENILE    DELINQUENTS 

faddist.  The  curriculum  in  the  ordinary  school  is  already  crowded, 
and  seems  to  preclude  the  possibility  of  introducing  a  department 
of  ethical  instruction.  Nor  would  it  be  desirable.  Deep  moral 
lessons  may  be  taught  in  every  department,  from  spelling  to  math- 
ematics. Especially  do  literature  and  history  lend  themselves  to 
the  making  of  moral  children.  The  principal  desideratum  is  that 
teachers  shall  be  conscious  of  the  necessity  of  opening  the  way 
everywhere  for  right  decisions.  The  child  should  not  find  it  neces- 
sary to  go  through  a  long  course  of  reasoning,  laboriously  weigh- 
ing the  elements,  in  order  to  decide  a  question.  In  most  matters 
he  should  be  able  to  take  his  stand  instantly.  Certainly  when  he 
has  come  to  the  point  where  his  mind  is  settled,  his  will  should  be 
immediately  set  in  motion. 

The  teacher  of  history  has  the  splendid  opportunity  of  leading 
the  pupils  through  time,  making  over  again  the  decisions  of  the 
ages,  analyzing  errors,  p.ositing  results  that  would  follow  from 
various  possible  courses,  coloring  all  with  a  high  morality.  There 
could  not  be  written  that  text  book  on  history  which  would  not  be 
a  great  laboratory  in  practical  ethics,  fine  practice  in  the  business 
of  making  right  decisions.  The  same  is  true  of  literature,  from 
the  most  serious  to  the  least.  How  deep  the  lessons  in  Burns' 
"To  a  Mouse,"  and  "To  a  Daisy;"  in  Wordsworth's  "To  a  Fly;" 
in  Eugene  Field,  in  Stevenson,  in  Dickens,  in  all  the  Romantic 
School,  to  say  nothing  of  the  purpose  novels  of  Kingsley!  And 
these  with  a  thousand  others  are  entirely  in  line  with  the  regular 
work  of  the  teacher.  The  instructor  must  understand  that  the 
child's  life  demands  that  history  and  literature  and  all  the  other 
subjects  are  to  be  presented  not  merely  as  things  of  beauty  or 
entertainment  or  material  profit,  but  always  as  a  part  of  real  life 
and  especially  for  the  accumulation  in  the  child's  life  of  experi- 
ences not  unlike  those  gained  elsewhere  and  which  by  analogy 
shall  help  him.  So  commonplace  does  such  advice  seem  that  it  is 
necessary  to  appeal  to  its  neglect  to  give  it  force.  The  Ethical 
Culture  School  of  New  York  has  begun  to  show  the  possibilities. 
Thoughtful  teachers  everywhere  have  touched  the  borders  of  this 
land.  Normal  schools  have  a  responsible  task  in  making  the 
teacher  consciously  a  teacher  and  leader  in  juvenile  morality. 
The  whole  matter  is  worthy  of  extended  treatment  with  the  records 
of  the  juvenile  courts  as  a  basis  and  inspiration  for  the  task. 

c.  Civic  Instruction.  Instruction  in  matters  civic  is  another 
thing  to  be  urged  in  the  light  of  our  experience  with  delinquents. 
To  understand  his  relation  to  his  fellows  and  his  duty  in  a  specific 
case  is  the  first  essential  for  the  child,  yet  often  enough  all  this 
takes  the  form  of  his  relation  to  the  community.  A  fair  acquaint- 
ance with  the  ways  of  the  city  and  the  state,  the  duties  of  officials, 
the  value  of  life  and  property,  the  rights  of  men  with  men,  will 
prevent  much  evil  that  the  child  now  walks  into  only  half  con- 
scious of  infringement.  Instruction  in  civics  is  very  incidental  in 
the  ordinary  school.  Here  is  a  field  for  special  organizations  with- 


SUGGESTIONS  FROM  A  PARTICULAR  STUDY  73 

in  the  schools  something  after  the  plan  of  the  George  Junior 
Republic  in  procedure.  The  time-honored  debating  society  could 
do  no  better  than  to  devote  the  wrangling  propensities  of  the  youth 
concerned  to  the  learning  of  the  life  of  the  city  and  the  duties  of 
the  officials,  disguised  under  the  form  of  the  various  city  depart- 
ments. Thus  the  child  could  learn  without  knowing  that  he  was 
learning  all  the  possible  relations  he  might  sustain  to  the  com- 
munity which  stands  ready  on  small  provocation  to  pronounce  him 
delinquent. 

d.  Manual  and  Religious  Training.  The  bearing  of  manual 
and  religious  training  is  patent,  and  these  matters  will  soon  be 
placed  on  a  good  working  basis  in  the  schools.  So  large  is  the 
discussion  of  these  matters  that  their  relation  to  delinquency  is 
here  indicated  by  only  a  word. 

4.  Parks,   Playgrounds,    Vacation  Schools  and  Settlements. 
Just  as  we  look  for  moths  in  the  spare  rooms,  where  they  have 
opportunity  to  work  unmolested,  we  look  to  the  spare  time  of  our 
youth  for  much  of  the  delinquency  that  is  only  the  result  of  inac- 
tivity.      This  fact  has  been  one  of  the  chief  arguments  leading  to 
the  establishment    of   vacation    schools,   parks    and    playgrounds. 
All  these  give  place  for  the  normal  expression  of  the  child's  life, 
and  in  the  first  and  last  his  energies  are  carefully  directed  so  that 
his  pleasure  becomes  also  his  direct  profit.     When  placed  where 
most  needed,  the  vacation  schools  and  playgrounds  without  any 
question  have  saved  many  a  child  from  delinquency  and  many  a 
delinquent  from  crime.      Their  worth  is  incalculable,  and  they  are 
being  appreciated  to  the  extent  that  back  of  them  stand  scores  of 
supporters  and  agitators.     But  the  parks  and  boulevards  are  usual- 
ly lacking  in  the  crowded  districts  which  contribute  most  to  the 
courts.      1.       The  settlements  with  their  various  features,  clubs, 
gymnasia,  baths,  playgrounds,  employment  bureaus,   and  most  of 
all  their  consecrated  and  competent  resident  sharing  in  their  every- 
day lite,  have  done  valiant  service.       They  have  insisted  on  clean 
community  life  and  clean  individual  life. 

5.  The  Place  of  the  Library  and  the  Librarian.      There  are 
facilities  in  a  well  equipped  library  which  have  not  been  fully  used. 
A  good  juvenile  department  is  always  popular,  irrespective  of  the 
condition  of  the  children  of  the  locality.       The  children  can  find 
many  books  which  are  almost  as  real  to  them  as  real  life,  and  will 
occupy  their  time  with  a  good  book  in  those  very  moments  when 
their  sheer  restlessness  makes  them  uneasy  and  reckless.       The 
juvenile  book  world  is  a  veritable  mine  today,  and  the  department 
calls  for  those  adapted  and  trained  for  the  service  they  may  render. 
An  adept  not  only  knows  the  literature,  but  knows  the  boy,  and 
invariably  a  good  choice  on  her  part  invites  the  repetition  of  the 
child's  confidence  in   her  judgment.       He  may  be  introduced  to  a 
new  world  in  every  book.      His  mind  maybe  filled  with  riches  that 
he  can  command  all  his  life.       His  moments  may  be  rescued  from 

i  T.  J.  Riley,  "The  Higher  Life  of  Chicago,11  p.  14,  1904. 


74  TREATMENT    OF    JUVENILE    DELINQUENTS 

worse  than  idleness  and  a  genuine  contribution  made  to  his  life 
equipment.  It  is  a  splendid  field  for  one  who  has  the  instincts  of 
the  teacher,  the  playmate  and  the  book  lover. 

Less  than  a  year  ago  a  librarian  in  a  large  city  library  was  ap- 
proached by  a  worker  in  the  juvenile  department  who  had  all  the 
qualifications,  education,  interest  to  direct  the  reading  of  the 
crowds  of  boys  who  came  to  the  library,  many  of  whom  had  been 
in  the  juvenile  court  for  delinquency.  She  wished  to  give  her  time 
during  the  whole  afternoon  to  a  closer  contact  with  the  boys,  di- 
recting their  reading,  learning  more  of  their  live?  that  she  might 
better  know  their  needs,  reading  to  groups  of  the  younger  ones  and 
in  general  putting  the  means  of  the  department  at  the  disposal  of 
the  children.  The  opportunity  was  to  do  a  great  service,  to  es- 
tablish in  the  juvenile  department  a  movement  which  should  be 
the  ideal  for  every  city  library,  to  render  to  the  city  world  of  youth 
a  help  that  it  may  long  wait  for.  But  every  one  on  the  force  was 
needed  to  do  clerical  work  !  The  funds  were  low  !  And  at  that 
very  moment  one  highest  up  in  the  force  of  "clerical"  workers  was 
embezzling  the  funds  of  the  library — had  been  doing  so  for  years 
unwatched  !  The  plan  was  not  for  a  moment  considered.  What 
a  splendid  opportunity  the  juvenile  department  of  a  large  library 
offers  in  behalf  of  delinquent  and  threatened  children.  Honor  to 
the  library  furnishing  funds  and  talent  to  this  work  ! 

6.  Civic  Improvement  Leagues.  It  has  been  sufficiently  in- 
dicated that  juvenile  delinquency  has  many  causes.  If  the  evil  is 
remedied  there  must  be  many  changes  in  the  environment  of  the 
youth.  The  task  is  manifold  and  the  forces  must  correspond. 
The  time  has  come  for  the  establishment  of  a  clearing-house  in 
every  city  for  the  betterment  of  the  city  in  every  respect,  and  of 
such  an  establishment  the  juvenile  court  can  make  the  greatest 
use.  Many  such  bodies  come  into  existence  as  Improvement 
Leagues  whose  prime  interest  is  the  promotion  of  the  beauty  and 
cleanliness  of  the  city.  Others  make  for  clean  politics.  Both  are 
of  benefit  to  childhood.  It  is  now  suggested  that  such  organiza- 
tions enrich  their  purpose  and  extend  their  efforts  by  having  more 
consciously  in  view  the  improvement  of  childhood.  The  Civic  Im- 
provement League  of  St.  Louis  has  committees  on  the  press,  legis- 
lation, open  air  play  grounds,  free  baths,  waste  paper  boxes,  pub- 
lic sanitation,  vacant  lots,  statuary,  junior  horticultural  farm  and 
school  gardens,  tree  planting,  wide  tires,  water  purification,  sub- 
urban improvement,  signs  and  sign  boards,  historic  tablets,  street 
naming,  tenement  houses,  pure  milk,  also  a  ladies'  sanitary  com- 
mittee, membership  and  general  committees.  There  is,  of  course, 
the  possibility  of  change  and  addition  and  expansion  indefinite.  A 
Civic  Improvement  League  enlists  those  most  closely  and  really  in- 
terested in  improvement,  and  enlists  them  as  volunteers.  When 
open  to  facts  and  actual  conditions  such  persons  can  exercise  the 
healthiest  censorship  over  officials  who  are  inclined  to  get  away 
from  the  notion  of  the  public  good.  They  learn  of  conditions  hid- 


SUGGESTIONS    FROM    A    PARTICULAR    STUDY  75 

den  and  ugly,  they  agitate,  they  enlist  followers,  they  publish  con- 
ditions, they  keep  the  standard  of  official  action  high,  they  act 
privately,  legally,  publicly.  For  many  years  the  men  and  women 
of  social  spirit  have  known  that  there  were  other  fields  than  the 
church  for  their  efforts.  The  result  has  been  the  settlement,  the 
organized  bureau  of  charities,  the  voters'  leagues,  and  a  hundred 
other  forms.  The  systematic  organization  of  the  moral  forces  of 
the  community  is  as  inevitable  as  the  organization  of  labor.  The 
result  will  be  more  action,  cleaner  cities,  more  accurate  knowledge 
of  facts,  dissemination  of  those  facts,  higher  ideals  and  achieve- 
ment of  them.  It  is  just  this  that  the  youth  of  the  city  need.  The 
result  will  be  shown  in  the  records  of  the  courts.  Civic  Improve- 
ment Leagues  must  be  the  order  of  the  future,  accomplishing 
through  private  interest  what  public  interest  is  powerless  to  ac- 
complish. 


CHAPTER   XIII.      . 
CONCLUSION. 

''  The  centuries  have  brought  the  state  to  the  fore.  Its 
will  is  the  dominant  will.  But  there  is  no  state  except  the  ag- 
gregate of  individuals  brought  to  their  united  best  through  the 
years  of  experience.  It  is  not  an  arbitrary  thing  existing  for  itself. 
Its  great  and  only  task  is  the  insurance  of  the  good  of  its  members. 
It  is  protector  of  rights  and  guardian  of  happiness.  For  these 
purposes  it  has  formulated  laws,  ever  closing  in  upon  its  members, 
restricting  individual  actien  in  certain  spheres,  but  by  denning 
rights,  making  men  free./JChe  early  laws  took  little  account  of  the 
rights  of  children,  the  family  being  sponsor  for  them.  But  in  re- 
cent years  more  account  of  the  children  has  been  taken.  They 
are  legally  persons,  and  therefore  have  rights.  But  beyond  all 
this,  the  state  has  taken  it  upon  itself  to  give  all  its  members  equal 
chance  of  life  and  happiness.  In  the  case  of  the  children  it  does 
this  by  insisting  that  they  receive  their  due  heritage  of  family  train- 
ing and  instruction  and  help,  whether  it  comes  from  the  family  or 
from  the  state  in  its  parental  function. 

It  is  in  connection  with  the  exercise  of  this  power  by  the  state 
with  the  delinquent  group  that  our  problems  rise.  /  Legal  delin- 
quency is  but  an  incident,  often  an  accident.  But  in  the  main  it 
is  inevitable  when  certain  conditions  exist  which  do  exist  general- 
ly, especially  in  our  cities.  The  duty  of  the  state,  therefore,  is 
with  those  various  conditions.  It  is  surely  not  sufficient  to  punish 
the  delinquent  child.  We  are  beginning  to  believe  that  the  state 
does  not  perform  its  duty  even  in  reformation  of  the  delinquent. 
It  must  prevent,  and  it  must  go  to  such  lengths  in  prevention  that 
it  is  the  same  state,  operating  in  the  same  spirit,  that  cares  for  the 
child  in  the  school,  in  the  street,  in  the  playground,  in  the  factory, 
in  the  court  and  in  the  home.  It  cannot  afford  to  wait  for  the  for- 
mal declaration  of  delinquency;  it  must  anticipate,  ward  off.  It 
must  yet  learn  to  forget  the  delinquent  of  the  court  and  the  proba- 
tion office  and  start  back  with  the  child  yet  too  young  to  come  in 
contact  with  the  world  in  many  places,  yes,  even  plan  now  for  gen- 
erations of  the  future.  It  must  learn  to  idealize  to  the  extent  of 
thinking  of  every  child  as  a  possible  delinquent  before  it  may  dream 
of  every  chil^as  an  acceptable  member  of  society,  and  lay  its  plans 
accordingly. 

76 


CONCLUSION  77 

It  is  not  too  much  to  insist  again  that  where  prisons  and  re- 
formatories and  courts  have  stood  there  shall  be  homes,  schools, 
institutions  of  a  hundred  sorts,  all  under  the  state's  eye  and  care, 
all  marking  its  entrance  into  parenthood.  And  the  men  and  the 
women  through  whom  this  office  is  mediated,  if  they  be  not  the  of- 
ficers to  whom  are  committed  the  care  of  streets,  schools,  play- 
grounds, tenements  and  all  the  forms  which  gather  up  the  interests 
of  the  people,  must  be  the  interested,  the  reformers,  the  volunteer 
fathers  and  mothers.  After  all,  they  are  the  state  quite  as  much 
as  the  police  or  the  judges,  each  one  a  prophet  of  the  day  when 
government  shall  be  parental  in  spirit  and  in  the  best  sense,  each  a 
prophet  of  the  day  when  the  state  shall  seek  for  its  servants  and 
mediators  the  Rooseveltian  men  and  women,  the  spirits  able  to 
look  upon  the  veriest  arab  and  rag-a-muffin  and  dream  dreams  and 
see  visions  of  an  upright  and  effective  citizen.  Today  the  call  is 
for  such.  It  is  the  line  of  the  skirmish  that  is  to  be  occupied;  the 
main  army  is  not  yet  recruited.  It  is  hoped  that  this  glance  back 
over  the  country  will  reveal  some  things  not  seen  as  we  have  ad- 
vanced, that  the  plea  that  the  state  do  its  work  as  a  state  rather 
than  in  its  few  leaders,  may  be  heard,  further,  may  not  the  state 
feel  its  burden  of  responsibility  over  every  child  who  is  delinquent 
or  may  be  delinquent?  Our  reconnoitering  wilj  soon  yield  many 
plans  of  campaign.  We  can  continually  gain^more  vantage  points, 
open  up  new  territory,  fortify  previous  occupations,  and  hear  ever 
the  call  to  further  unselfish,  undiscouraged  service  in  the  battle  for 
childhood. 


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